Common use of Second Closing Clause in Contracts

Second Closing. Following the First Closing Date and until January 6, 2017, the Company may sell, on the same terms and conditions as those contained in this Agreement, an additional number of shares of Preferred Stock equal to the Maximum Amount less the amount sold to Purchasers in the First Closing, to one or more Purchasers or such other purchasers as the Company and Purchasers otherwise agree in the manner set forth in Section 5.5 of this Agreement (each such other purchaser, an “Additional Purchaser”); provided, however, that each Purchaser participating in the Initial Closing shall have the right to purchase up to its pro-rata share (based on the amounts of Preferred Stock that such Purchaser purchased at the First Closing) of the portion of such Second Closing. Each Additional Purchaser that subscribes to the Second Closing shall be required to become a party to this Agreement and the Registration Rights Agreement by executing and delivering a counterpart signature page thereto, and shall otherwise be deemed a “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior to the Second Closing) of the occurrence of the Second Closing and, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such participation. On the Second Closing Date, each Purchaser shall deliver to the Company, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount for the Second Closing as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective shares of Preferred Stock, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second Closing.

Second Closing. Following Each Purchaser, in its sole discretion, may purchase, and the First Company shall sell and issue, an aggregate of up to 5,165,286 additional Shares at a subsequent closing (the “Second Closing”). The Second Closing Date of the purchase and until January 6sale of the Securities (which Securities are set forth in the Schedule of Purchasers) pursuant to this Agreement shall be held on May 14, 20172010, or such earlier date as the Purchasers having agreed to purchase a majority of the Shares in the Second Closing mutually agree upon (the “Second Closing Date”), at the offices of Xxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxx, Menlo Park, California 94025. At the Second Closing, the Company may sellshall issue to each Purchaser stock certificates registered in the name of such Purchaser, on or in such nominee name(s) as designated by such Purchaser, representing the same terms and conditions as those contained in this Agreement, an additional number of shares of Preferred Stock equal Shares to the Maximum Amount less the amount sold to Purchasers in the First Closing, to one or more Purchasers or such other purchasers as the Company and Purchasers otherwise agree in the manner set forth in Section 5.5 of this Agreement (each such other purchaser, an “Additional Purchaser”); provided, however, that each Purchaser participating in the Initial Closing shall have the right to purchase up to its pro-rata share (based on the amounts of Preferred Stock that be purchased by such Purchaser purchased at the First Closing) of the portion of such Second Closing. Each Additional Purchaser that subscribes to the Second Closing shall be required to become a party to this Agreement and the Registration Rights Agreement by executing and delivering a counterpart signature page thereto, and shall otherwise be deemed a “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior to the Second Closing) of the occurrence of the Second Closing and, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such participation. On the Second Closing Date, each Purchaser shall deliver to the Company, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount for the Second Closing as set forth on in the signature page hereto executed by Schedule of Purchasers against payment of the purchase price for such Purchaser, and the Company Shares. Each Purchaser shall deliver be entitled to each Purchaser purchase up to its respective shares Pro-Rata Share (as defined below) of Preferred Stock, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth Shares in Section 2.2 deliverable at the Second Closing.. In addition, any amounts not subscribed to by a Purchaser as part of its Pro-Rata Share (the “Overallotment”) shall be offered to the Purchasers that purchased their respective Pro-Rata Share amounts (the “Overallotment Offering”), for (i) the amount the Purchasers participating in the Overallotment Offering desire to purchase or, (ii) in the case such Purchasers desire to purchase more than the Overallotment, their respective Pro-Rata

Second Closing. Following If at any time prior to December 31, 2010, the First Closing Date and until January 6, 2017Company’s Board of Directors determines in good faith that the Company has achieved each of the milestones set forth on EXHIBIT B attached hereto, the Company may sellshall provide written notice of such determination to the Purchasers (the “Second Closing Notice”), which notice shall not be delivered prior to June 30, 2010. The Second Closing Notice shall also set forth a date, which shall be no sooner than 5 business days and no later than 15 business days following the date of the Second Closing Notice, on which the same terms second closing of the sale and conditions as those contained in purchase of the Shares under this AgreementAgreement (the “Second Closing”) shall take place. Following delivery of the Second Closing Notice, an additional number the Second Closing shall take place at 5:00 p.m. Pacific Time at the offices of shares of Preferred Stock equal to Xxxxxx Godward Kronish LLP, 0000 Xxxxxxxx Xxxx, Xxx Xxxxx, XX, 00000 on the Maximum Amount less the amount sold to Purchasers date set forth in the First ClosingSecond Closing Notice, to one or more Purchasers or at such other purchasers time as the Company and the Purchasers otherwise holding a majority of the Shares then issued hereunder (the “Majority Purchasers”) may mutually agree in (the manner set forth in Section 5.5 of this Agreement (each such other purchaser, an “Additional PurchaserSecond Closing Date”); provided, however, that each Purchaser participating in the Initial Closing shall have the right to purchase up to its pro-rata share (based on the amounts of Preferred Stock that such Purchaser purchased at the First Closing) of the portion of such Second Closing. Each Additional Purchaser that subscribes to the Second Closing shall be required to become a party to this Agreement and the Registration Rights Agreement by executing and delivering a counterpart signature page thereto, and shall otherwise be deemed a “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior to the Second Closing) of the occurrence of the Second Closing and, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such participation. On the Second Closing Date, subject to the terms and conditions hereof, the Company will deliver to each Purchaser shall deliver a certificate representing the number of Shares to the Company, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount for be purchased at the Second Closing by such Purchaser, as set forth on the signature page hereto executed Schedule of Purchasers, against payment of the purchase price therefor by check or wire transfer made payable to the order of the Company, cancellation or conversion of indebtedness or any combination of the foregoing. In the event that payment by a Purchaser is made, in whole or in part, by cancellation or conversion of indebtedness, then such Purchaser, and Purchaser shall surrender to the Company shall deliver to each Purchaser its respective shares of Preferred Stock, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable for cancellation or conversion at the Second ClosingClosing any evidence of such indebtedness or shall execute an instrument of cancellation or conversion in form and substance acceptable to the Company.

Second Closing. Following the First Closing Date and until January 6, 2017, the Company may sell, on the same terms and conditions as those contained in this Agreement, an additional number of shares of Preferred Stock equal to the Maximum Amount less the amount sold to Purchasers in the First Closing, to one or more Purchasers or such other purchasers as the Company and Purchasers otherwise agree in the manner set forth in Section 5.5 of this Agreement (each such other purchaser, an “Additional Purchaser”); provided, however, that each Purchaser participating in the Initial Closing shall have the right to purchase up to its pro-rata share (based on the amounts of Preferred Stock that such Purchaser purchased at the First Closing) The obligations of the portion Investor and the Corporation to complete the purchase and sale of such Second Closing. Each Additional Purchaser that subscribes to Debentures at the Second Closing are conditional upon the satisfaction of, or compliance with, or waived (to the extent waivable) by the party who benefits from the condition, the following conditions (the Second Closing Conditions): (a) at least two (2) trading days before the Second Closing Date, the Corporation shall be have delivered to the Investor written notice of its intention to issue the applicable Securities as listed in Section 2.1 for the applicable Closing (the Second Closing Notice); (b) at least two (2) business days before the Second Closing Date, the Corporation shall have delivered to the Investor wire transfer instructions for the payment of this Subscription Amount; (c) all necessary regulatory and CSE approvals (if any) required to become a party to for the entering into this Subscription Agreement and the Registration Rights completion of the transactions contemplated under this Subscription Agreement by executing and delivering a counterpart signature page thereto, and shall otherwise be deemed a “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days have been obtained prior to the Second Closing; (d) of the occurrence of the Second Closing and, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such participation. On before or on the Second Closing Date, each Purchaser the Corporation shall deliver to have posted CSE Form 9 and CSE Form 6 on the Company, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount for CSE's website; (e) before the Second Closing as set forth on Date, the signature page hereto executed by Share Lending Agreement, shall have been entered into with respect to the lending of 2,500,000 additional freely tradeable Common Shares, with such Purchaserterms in the Share Lending Agreement to accommodate earlier return of such 2,500,000 Common Shares if another exemption becomes available for the issuance of the Securities that does not bear a statutory hold period; (f) before the Second Closing Date, 2,500,000 additional freely tradeable Common Shares having been transferred to the Investor pursuant to the Share Lending Agreement, such that a total of 3,100,000 freely tradeable Common Shares shall have been lent to the Investor pursuant to the Share Lending Agreement, unless before such Second Closing Date, the Corporation and its counsel have determined that another exemption is available for issuance of the Securities that does not bear a statutory hold period and the Company Investor and its legal counsel are satisfied with such determination, in which case the 2,500,000 additional freely tradeable Common Shares shall deliver not be required to each Purchaser its respective shares be transferred; (g) (i) the representations, warranties and certifications of Preferred Stockthe 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 determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second Closing Date; and (ii) the covenants and obligations of the Investor (as applicable to the Second Closing.) in this Subscription Agreement, including in any other document delivered to the Corporation in connection with the Investment, shall have been complied with or performed by the Investor, in all material respects, on or before the Second Closing Date; (h) (i) the representations, warranties and certifications of the Corporation addressed to the Investor in 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 Second Closing Date; and (ii) the covenants and obligations of the Corporation (as applicable to the Second Closing) in this Subscription Agreement, including in any other document delivered to the Investor in connection with the Investment, shall have been complied with or performed by the Corporation, in all material respects, on or before the Second Closing Date; (i) no order ceasing or suspending trading in the Common Shares on any stock exchange shall have been issued and no proceeding for such purposes shall be pending or threatened; (j) 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 substance satisfactory to the Investor, acting reasonably; (k) delivery of an officer's certificate by the Corporation certifying (i) no changes from the officer’s certificate delivered under subsection 3.1(o) as it relates to constating documents, authorizing board resolutions and incumbency, and (ii) that the condition in subsection 3.1 (l) has been satisfied;

Second Closing. Following Unless otherwise consummated at the First --------------- Closing Date and until January 6(which, 2017in that event, the Company may sell, on the same terms and following conditions as those contained precedent other than subsection (iv) below shall be satisfied in this Agreement, an additional number of shares of Preferred Stock equal to the Maximum Amount less the amount sold to Purchasers in connection with the First Closing), to one or more Purchasers or such other purchasers as the Company and Purchasers otherwise agree in obligation of the manner set forth in Section 5.5 of this Agreement (each such other purchaser, an “Additional Purchaser”); provided, however, that each Purchaser participating in the Initial Closing shall have the right Buyer hereunder to purchase up to its pro-rata share (based on the amounts of Preferred Stock that such Purchaser purchased Second Convertible Debenture and the Second Warrants at the First Closing) of the portion of such Second Closing. Each Additional Purchaser that subscribes to the Second Closing shall be required to become a party to this Agreement and the Registration Rights Agreement by executing and delivering a counterpart signature page thereto, and shall otherwise be deemed a “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior is subject to the Second Closing) of the occurrence of the Second Closing andsatisfaction, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such participation. On or before the Second Closing Date, of each Purchaser of the following conditions: (i) The Company shall deliver have executed appropriate amendments to the CompanyOther Transaction Documents providing for the inclusion thereunder of the Second Convertible Debenture, via wire transfer or a certified checkSecond Warrants and Second Warrant Shares, immediately available funds equal as the case may be, and delivered them to the Buyer. (ii) The representations and warranties of the Company shall be true and correct in all material respects (except to the extent that any of such Purchaser’s Subscription Amount for representations and warranties is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct without further qualification) as of the date when made and as of the Second Closing Date as set forth on the signature page hereto executed by such Purchaser, though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall deliver have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to each Purchaser its respective shares be performed, satisfied or complied with by the Company at or prior to the Second Closing Date. If requested by the Buyer, the Buyer shall have received a certificate, executed by two officers of Preferred Stockthe Company, dated as determined pursuant of the Second Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by the Buyer including, without limitation an update as of the Second Closing Date regarding the representation contained in Section 2.2(a), 3(c) above. (iii) The Company shall have executed and delivered to the Buyer the Second Convertible Debenture and the Second Warrants. (iv) The Company shall have certified that all conditions to the Second Closing have been satisfied and each Purchaser that the Company will file the Registration Statement with the SEC in compliance with the rules and regulations promulgated by the SEC for filing thereof two (2) business days after the Second Closing. If requested by the Buyer, the Buyer shall deliver have received a certificate, executed by the other items set forth in Section 2.2 deliverable two officers of the Company, dated as of the Second Closing Date, to the foregoing effect. The Buyers have no obligation to fund at the Second ClosingClosing if the Company has filed the Registration Statement. (v) The Company shall have provided to the Buyer a certificate of good standing from the secretary of the state in which the Company is incorporated.

Second Closing. Following Subject to the terms and conditions hereof, in the event that the Purchase Price paid for the Units does not exceed the Maximum Offering Amount, the Company agrees to issue and sell to the Purchasers who execute this agreement and are listed on Exhibit B hereto and, in consideration of and in express reliance upon the representations, warranties, covenants, terms and conditions of this Agreement, the Purchasers, severally but not jointly, agree to purchase from the Company on such Second Closing Date (as defined below), up to such number of Units for an aggregate purchase price that is the difference between the gross proceeds from the First Closing Date and until January 6, 2017the Maximum Offering Amount (the “Second Closing”). The First Closing and the Second Closing are each referred to in this Agreement as a “Closing.” Notwithstanding the foregoing, the Company may sell, on aggregate number of Units sold in both the same First Closing and the Second Closing shall not exceed 7,887,500. Subject to the terms and conditions as those contained set forth in this Agreement, an additional number the date and time of shares of Preferred Stock equal to the Maximum Amount less Second Closing (the amount sold to Purchasers in “Second Closing Date,” and together with the First ClosingClosing Date, each a “Closing Date” and collectively, the “Closing Dates”) shall be 1:00 p.m., New York City Time, on the date mutually agreed to one or more Purchasers or such other purchasers as by the Company and the Purchasers otherwise agree in the manner set forth in Section 5.5 of this Agreement (each such other purchaser, an “Additional Purchaser”)executing a signature page hereto; provided, however, that each Purchaser participating in the Initial Closing shall have the right such date is not expected to purchase up to its pro-rata share (based on the amounts of Preferred Stock be later than June 30, 2008 and that such Purchaser purchased at the First Closing) all of the portion of such Second Closing. Each Additional Purchaser that subscribes conditions set forth in Article IV hereof and applicable to the Second Closing shall be required have been fulfilled or waived in accordance herewith. Subject to become a party to this Agreement the terms and the Registration Rights Agreement by executing and delivering a counterpart signature page thereto, and shall otherwise be deemed a “Purchaser” for purposes conditions of this Agreement. The , at the Second Closing the Company shall provide Purchasers with at least 2 Trading Days’ prior notice deliver or cause to be delivered to each Purchaser (but not x) a certificate for the number of Preferred Shares set forth opposite the name of such Purchaser to exceed 3 Trading Days prior be listed on Exhibit B hereto, (y) its Warrants to purchase such number of shares of Common Stock as is set forth opposite the name of such Purchaser on Exhibit B to be attached hereto and (z) any other documents required to be delivered pursuant to Article IV hereof. At the Second Closing) of the occurrence of the Second Closing and, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such participation. On the Second Closing Date, each Purchaser shall deliver its Purchase Price by wire transfer to the Company, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount for the Second Closing as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective shares of Preferred Stock, as determined escrow account pursuant to Section 2.2(athe Escrow General Agreement (as hereafter defined), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second Closing.

Second Closing. Following The second closing of the First Closing Date issuance and until January 6-------------- sale of Notes, 2017Series A Warrants and Series B Warrants pursuant to Subsection 1.4 hereof and certain of the other transactions contemplated hereby (the "Second Closing") shall take place at the offices of Xxxxxxx, the Company may sellProcter & Xxxx LLP, Exchange Place, Boston, Massachusetts, on the same terms and conditions such date as those contained in this Agreement, an additional number of shares of Preferred Stock equal to the Maximum Amount less the amount sold to Purchasers in the First Closing, to one or more Purchasers or such other purchasers as the Company and Purchasers otherwise agree in the manner set forth in Section 5.5 of this Agreement (each such other purchaser, an “Additional Purchaser”); provided, however, that each Purchaser participating in the Initial Closing shall have the right to purchase up to its pro-rata share (based on the amounts of Preferred Stock that such Purchaser purchased at the First Closing) all of the portion of such Second Closing. Each Additional Purchaser that subscribes conditions specified in Subsection 3.1 required to be satisfied at or prior to the Second Closing shall be required to become a party to this Agreement and have been satisfied or waived by the Registration Rights Agreement by executing and delivering a counterpart signature page theretoPrincipal Purchaser (such date on which the Second Closing shall have actually occurred, and shall otherwise be deemed a “Purchaser” for purposes of this Agreementthe "Second Closing Date"). The Company shall provide the Purchasers with thirty days prior written notice of the proposed Second Closing Date. At the Second Closing, the Company will deliver or cause to be delivered to each Purchaser, a single Note in the principal amount specified opposite such Purchaser's name on the signature page hereto, a single Series A Warrant certificate to purchase the number of shares of Common Stock specified opposite such Purchaser's name on the signature page hereto, and a single Series B Warrant certificate to purchase the number of shares of Common Stock specified opposite such Purchaser's name on the signature page hereto (or such greater number of Notes or Warrant certificates as such Purchaser may request upon four (4) days prior notification), in each case dated the date of the Second Closing and registered in such Purchaser's name or (upon four (4) days prior notification) that of its nominee, against payment of the purchase price therefor in the amount specified opposite such Purchaser's name on the signature pages hereto. If at least 2 Trading Days’ the Second Closing the Company shall fail to tender to the Purchasers any of the Notes, Series A Warrants or Series B Warrants to be purchased by the Purchasers as provided in this Subsection 2.2, or if any of the conditions specified in Subsection 3.1 required to be satisfied at or prior notice to the Second Closing shall not have been satisfied or waived by the Principal Purchaser at or prior to June 30, 1997 (but not or such later date as the Principal Purchaser, in its sole discretion, shall consent to exceed 3 Trading Days in writing), the Purchasers shall, at their election, be relieved of all further obligations under this Agreement, without thereby waiving any other respective rights they may have by reason of such failure or such non-fulfillment. The Company acknowledges and agrees that the Principal Purchaser shall have the absolute right, in its sole discretion, to waive any or all of the conditions specified in Section 3.1 required to be satisfied at or prior to the Second Closing) , and, notwithstanding anything to the contrary set forth herein or in any of the occurrence other Transaction Documents, the Company hereby irrevocably agrees with the Purchasers, that upon the written request of the Principal Purchaser, the Company shall issue and sell to the Purchasers the Notes and Warrants to be issued and sold to the Purchasers pursuant to this Section 2.2 on such proposed Second Closing Date as the Principal Purchaser shall specify in such request (which proposed Second Closing Date shall be not less than seven (7) Business Days prior to nor more than thirty (30) Business Days after such request is delivered to the Company by the Principal Purchaser). In the event any Purchaser (other than the Principal Purchaser) shall decline (such Purchaser being hereinafter referred to as a "Declining Purchaser") to purchase any of the Notes or Warrants to be issued and sold to such Declining Purchaser at the Second Closing andpursuant to the terms of this Agreement, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such participation. On the Second Closing Date, each Principal Purchaser shall deliver purchase all of the Notes and Warrants that were to the Company, via wire transfer or a certified check, immediately available funds equal have been issued and sold to such Declining Purchaser’s Subscription Amount for the Second Closing as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective shares of Preferred Stock, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second Closing.

Second Closing. Following the First Closing Date and until January 6, 2017, the Company may sell, on the same terms and conditions as those contained in this Agreement, an additional number of shares of Preferred Stock equal to the Maximum Amount less the amount sold to Purchasers in the First Closing, to one or more Purchasers or such other purchasers as the Company and Purchasers otherwise agree in the manner set forth in Section 5.5 of this Agreement (each such other purchaser, an “Additional Purchaser”); provided, however, that each Purchaser participating in the Initial Closing shall have the right to purchase up to its pro-rata share (based on the amounts of Preferred Stock that such Purchaser purchased at the First Closinga) The closing of the portion purchase and sale of such the Additional Royalties (the “Second Closing. Each Additional Purchaser that subscribes to ”) shall take place on the Second Closing shall be required to become a party to this Agreement and Date by the Registration Rights Agreement exchange of documents electronically or by executing and delivering a counterpart signature page theretoemail, and shall otherwise be deemed a “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior subject to the Second Closing) satisfaction of the occurrence following conditions in favour of the Purchaser, each of which may be waived by the Purchaser in its sole discretion: (i) no Material Adverse Change shall have occurred and be continuing as of the Second Closing Date; (ii) each of the Fundamental Representations and Warranties of the Seller in this Purchase and Sale Agreement will be true and correct as of the Second Closing, and all other representations and warranties of the Seller contained in this Purchase and Sale Agreement shall have been true and correct as of the Closing and, if subject to the transactions that occurred at the Closing, will be true and correct as of the Second Closing except to the extent that all inaccuracies or incompleteness therein would not, in the aggregate, reasonably be expected to result in a Purchaser wants to participate, Material Adverse Change (it will provide being understood that for the Company with at least one Trading Day notice purposes of such participation. On determination, all such representations and warranties that are qualified as to “material”, “material respects”, “Material Adverse Change” or words of similar import or effect will be deemed to have been made without such qualification), and a certificate of a senior officer of the Seller, dated the Second Closing Date, each Purchaser to that effect shall deliver have been delivered to the CompanyPurchaser. On the delivery of this certificate, via wire transfer or a certified check, immediately available funds equal the representations and warranties of the Seller in this Purchase and Sale Agreement will be deemed to such Purchaser’s Subscription Amount for have been made at and as of the Second Closing Date with the same force and effect as set forth on if made at and as of that time, in each case subject to the signature page hereto transactions that occurred at the Closing; (iii) the Seller shall have delivered a Xxxx of Sale in respect of the Additional Royalties, dated the Second Closing Date, duly executed by the Seller, which Xxxx of Sale shall automatically become effective upon receipt by the Seller of the Additional Purchase Price from the Purchaser; and (iv) the Seller shall deliver such Purchaserother certificates, documents and financing statements as the Purchaser may reasonably request, including a financing statement reasonably satisfactory to the Purchaser to create, evidence and perfect the sale, assignment, transfer, and conveyance of the Company shall deliver to each Purchaser its respective shares of Preferred Stock, as determined Additional Royalties pursuant to Section 2.2(a), 2.1 and the Company and each Purchaser shall deliver the other items set forth in back-up security interest granted pursuant to Section 2.2 deliverable at the Second Closing2.1(d).

Second Closing. Following (a) The second Closing (the "Second Closing") shall be held at the offices of Xxxx Xxxxxxx LLP, 0000 Xxxxxx Xxxxxxxxx, 00/xx/ Xxxxx, XxXxxx, Xxxxxxxx 00000 at 10:00 a.m. Eastern Time on August 31, 2001 or as soon thereafter as practicable following the satisfaction or waiver of all of the conditions to the Second Closing set forth in Section 5.2 and Section 5.3, as applicable, of this Agreement and in any event no later than sixty (60) days after the First Closing Date (which time, date and until January 6, 2017place are referred to herein as the "Second Closing Date"). At the Second Closing, the Company may sell, on the same terms and conditions as those contained in this Agreement, an additional number of shares of Preferred Stock equal to the Maximum Amount less the amount sold to Purchasers in the First Closing, to one or more Purchasers or such other purchasers as the Company and Purchasers otherwise agree in the manner set forth in Section 5.5 of this Agreement (each such other purchaser, an “Additional Purchaser”); provided, however, that each Purchaser participating in the Initial Closing shall have the right to purchase up to its pro-rata share (based on the amounts of Preferred Stock that such Purchaser purchased at the First Closing) of the portion of such Second Closing. Each Additional Purchaser that subscribes to the Second Closing shall be required to become a party to this Agreement and the Registration Rights Agreement by executing and delivering a counterpart signature page thereto, and shall otherwise be deemed a “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior to the Second Closing) of the occurrence of the Second Closing and, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such participation. On the Second Closing Date, each Purchaser shall deliver to the Company, via wire transfer or each Purchaser listed on Exhibit A-II (a certified check, immediately available funds equal "Second Closing Purchaser") such number of Shares to be purchased by such Purchaser’s Subscription Amount for Second Closing Purchaser at the Second Closing as set forth on Exhibit A-II opposite each Second Closing Purchaser's name by delivery to each Second Closing Purchaser of a certificate representing the signature page hereto executed number of Shares to be purchased at the Second Closing by such Second Closing Purchaser, and against payment of the Company shall deliver purchase price therefor by check, wire transfer made payable to each Purchaser its respective shares the order of Preferred Stockthe Company, cancellation of indebtedness or any combination of the foregoing. If at the Second Closing any of the applicable conditions specified in Section 5.2 or Section 5.3, as determined pursuant to Section 2.2(a)applicable, and shall not have been fulfilled, each Second Closing Purchaser shall, at its election, be relieved of all of its obligations under this Agreement in respect of the Company and each Second Closing without thereby waiving any other rights it may have by reason of such failure or such non-fulfillment; provided, however, that a Second Closing Purchaser shall deliver not be relieved of its obligations under this Agreement in respect of the Second Closing if the condition specified in Section 5.2(a) would not be fulfilled (but all of the other items set forth conditions specified in Section 2.2 deliverable at Sections 5.2 and 5.3 have been fulfilled) by the fact of such Second Closing Purchaser's failure to participate in the Second Closing. (b) At the Second Closing, the Company may sell to such purchasers (the "Additional Second Closing Purchasers") as may be approved by the holders of at least sixty percent (60%) of the Shares purchased at the First Closing, such number of additional shares of Series D Stock as is equal to the difference between (x) 9,089,329 and (y) the number of shares of Series D Stock sold at the First Closing and the number of Shares to be purchased at the Second Closing by the Second Closing Purchasers; provided, however, that the Company shall not be required to obtain approval of any holder or holders of Shares purchased at the First Closing with respect to any Additional Second Closing Purchaser to the extent that the fact of such Additional Second Closing Purchaser's participation in the Second Closing would have the result of the Second Closing being the Qualifying Closing. At the Second Closing, (i) each Additional Second Closing Purchaser (if any) shall execute and deliver a counterpart signature page hereto, whereupon such Additional Second Closing Purchaser shall become a "Purchaser" hereunder and the shares of Series D Stock purchased by such Additional Second Closing Purchaser shall be deemed to be "Shares" for purposes of this Agreement, and (ii) the Company shall cause Exhibit A-II to be amended to reflect the purchases made by the Additional Second Closing Purchasers.

Second Closing. Following the First Closing Date and until January 6, 2017, the Company may sell, on the same terms and conditions as those contained in this Agreement, an additional number of shares of Preferred Stock equal to the Maximum Amount less the amount sold to Purchasers in the First Closing, to one or more Purchasers or such other purchasers as the Company and Purchasers otherwise agree in the manner set forth in Section 5.5 of this Agreement (each such other purchaser, an “Additional Purchaser”); provided, however, that each Purchaser participating in the Initial Closing shall have the right to purchase up to its pro-rata share (based on the amounts of Preferred Stock that such Purchaser purchased at the First Closing) The obligations of the portion Investor and the Corporation to complete the purchase and sale of such Second Closing. Each Additional Purchaser that subscribes to Debentures at the Second Closing are conditional upon the satisfaction of, or compliance with, or waived (to the extent waivable) by the party who benefits from the condition, the following conditions (the Second Closing Conditions): (a) at least two (2) trading days before the Second Closing Date, the Corporation shall be have delivered to the Investor written notice of its intention to issue the applicable Securities as listed in Section 2.1 for the applicable Closing (the Second Closing Notice); (b) at least two (2) business days before the Second Closing Date, the Corporation shall have delivered to the Investor wire transfer instructions for the payment of this Subscription Amount; (c) all necessary regulatory and CSE approvals (if any) required to become a party to for the entering into this Subscription Agreement and the Registration Rights completion of the transactions contemplated under this Subscription Agreement by executing and delivering a counterpart signature page thereto, and shall otherwise be deemed a “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days have been obtained prior to the Second Closing; (d) of the occurrence of the Second Closing and, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such participation. On before or on the Second Closing Date, each Purchaser the Corporation shall deliver to have posted CSE Form 9 and CSE Form 6 on the Company, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount for CSE's website; (e) before the Second Closing as set forth on Date, the signature page hereto executed by Share Lending Agreement, shall have been entered into with respect to the lending of 2,500,000 additional freely tradeable Common Shares, with such Purchaserterms in the Share Lending Agreement to accommodate earlier return of such 2,500,000 Common Shares if another exemption becomes available for the issuance of the Securities that does not bear a statutory hold period; (f) before the Second Closing Date, 2,500,000 additional freely tradeable Common Shares having been transferred to the Investor pursuant to the Share Lending Agreement, such that a total of 3,100,000 freely tradeable Common Shares shall have been lent to the Investor pursuant to the Share Lending Agreement, unless before such Second Closing Date, the Corporation and its counsel have determined that another exemption is available for issuance of the Securities that does not bear a statutory hold period and the Company Investor and its legal counsel are satisfied with such determination, in which case the 2,500,000 additional freely tradeable Common Shares shall deliver not be required to each Purchaser its respective shares be transferred; (g) (i) the representations, warranties and certifications of Preferred Stockthe 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 determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second Closing Date; and (ii) the covenants and obligations of the Investor (as applicable to the Second Closing.) in this Subscription Agreement, including in any other document delivered to the Corporation in connection with the Investment, shall have been complied with or performed by the Investor, in all material respects, on or before the Second Closing Date; (h) (i) the representations, warranties and certifications of the Corporation addressed to the Investor in 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 Second Closing Date; and (ii) the covenants and obligations of the Corporation (as applicable to the Second Closing) in this Subscription Agreement, including in any other document delivered to the Investor in connection with the Investment, shall have been complied with or performed by the Corporation, in all material respects, on or before the Second Closing Date; (i) no order ceasing or suspending trading in the Common Shares on any stock exchange shall have been issued and no proceeding for such purposes shall be pending or threatened; (j) 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 substance satisfactory to the Investor, acting reasonably; (k) delivery of an officer's certificate by the Corporation certifying (i) no changes from the officer’s certificate delivered under subsection 3.1(o) as it relates to constating documents, authorizing board resolutions and incumbency, and (ii) that the condition in subsection 3.1 (l) has been satisfied;

Second Closing. Following At the First Closing Date Second Closing, Buyer shall pay to Seller the sum of Thirty Million Dollars ($30,000,000), which shall consist of the following: (i) a repayment of the $15,000,000 Purchase Price Note plus interest thereon (whereupon Seller will return the Purchase Price Note to Buyer marked as paid in full); (ii) Nine Million Dollars ($9,000,000) to be paid into a trust or other fiduciary account acceptable to the Seller at Closing; such trust or fiduciary account shall be used solely for the purpose of investigating, for the purposes of satisfying, defending, maintaining insurance coverage with respect to and until January 6, 2017otherwise protecting the Seller, the Company may sellSubsidiaries (including the Excluded Subsidiaries) and their managers, on members, officers, employees and other personnel with respect to certain potential contingent liabilities of Seller and its past and present Affiliates during a period of time to be specified in the same Letter of Credit and thereafter to be paid to Seller according to the terms and conditions directed by Seller. The funds in such account shall not be distributed to the members of the Company, or used for any purposes other than as those contained stated in this Agreementparagraph (ii) until the earlier of the following (x) settlement with the Government Agencies with respect to all Members, an additional number Managers, and Affiliates, or (y) receipt of shares of Preferred Stock equal written notification or other indication from Government Agencies known to be conducting investigations or inquiries to the Maximum Amount less effect that such Government Agencies are terminating their investigation or inquiry without the amount sold requirement of any penalty or imposition of any liability, or (y) five (5) years from the Second Closing Date. (iii) Three Million Dollars ($3,000,000) (the “Escrowed Purchase Price”) to Purchasers in be paid into an escrow account with a third party escrow agent mutually acceptable to the First Buyer and the Seller (the “Escrow Agent”) at Closing, to one or more Purchasers or such other purchasers which shall be released from escrow as the Company and Purchasers otherwise agree in the manner set forth in Section 5.5 3.2(a)(i), Section 3.3 and Section 10.5, and more specifically set forth in the escrow agreement agreed upon among the Escrow Agent, the Buyer and the Seller, in substantially the form of this Agreement Exhibit B hereto (each such other purchaser, an the “Additional PurchaserEscrow Agreement”); provided, however, that each Purchaser participating in the Initial Closing shall have the right and (iv) The balance to purchase up to its pro-rata share (based on the amounts of Preferred Stock that such Purchaser purchased at the First Closing) of the portion of such Second Closing. Each Additional Purchaser that subscribes be paid to the Second Closing shall be required to become a party to this Agreement and the Registration Rights Agreement Seller in cash by executing and delivering a counterpart signature page thereto, and shall otherwise be deemed a “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior to the Second Closing) of the occurrence of the Second Closing and, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such participation. On the Second Closing Date, each Purchaser shall deliver to the Company, via wire transfer or a certified check, of immediately available funds equal to such Purchaser’s Subscription Amount for the Second Closing as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective shares of Preferred Stock, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second Closingfunds.

Second Closing. Following After the First Initial Closing Date but prior to December 31, 2010, the Board of Directors of the Company (the “Board”) may designate a date upon which, subject to and until January 6in reliance upon the representation, 2017warranties, terms and conditions contained herein, the Company may sellshall issue and sell to the Purchasers, and the Purchasers, severally and not jointly, shall purchase (i) Notes in the principal amounts set forth opposite each Purchaser’s name under the heading “Second Closing Principal Amount of Notes” on the same terms and conditions as those contained in this Agreement, an additional number Schedule of shares of Preferred Stock equal to the Maximum Amount less the amount sold to Purchasers in the First Closing, to one or more Purchasers or such other purchasers as the Company and Purchasers otherwise agree in the manner set forth in Schedule I hereto and (ii) Warrants for that number of Warrant Shares set forth opposite each Purchaser’s name under the heading “Second Closing Warrant Shares” on the Schedule of Purchasers set forth in Schedule I. The Company shall give each of the Purchasers written notice pursuant to Section 5.5 6.05 of this Agreement the time and place which the Board has designated (each such other purchaser, an which time and place are designated as the “Additional PurchaserSecond Closing”); provided, however, that each Purchaser participating in the Initial Closing shall have the right . The aggregate purchase price to purchase up to its pro-rata share (based on the amounts of Preferred Stock that such Purchaser purchased be paid at the First Closing) of the portion of such Second Closing. Each Additional Purchaser that subscribes to the Second Closing shall be required to become a party to this Agreement by each Purchaser, severally and the Registration Rights Agreement by executing and delivering a counterpart signature page theretonot jointly, and shall otherwise be deemed a “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior to the Second Closing) of the occurrence of the Second Closing and, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such participation. On the Second Closing Date, each Purchaser shall deliver to the Company, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount for the Second Closing respective Note and Warrant as set forth on Schedule I shall be the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective shares of Preferred Stock, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items dollar amount set forth in Section 2.2 deliverable at on Schedule I under the heading “Second ClosingClosing Total Purchase Price.” The Company will issue and deliver such Notes and such Warrants against payment of such Second Closing Total Purchase Price by wire transfer, bank check, certified check or any combination of such methods and payments.

Second Closing. Following i. The obligations of KiOR to sell the First Closing Date Shares, and until January 6of the Purchasers to purchase the Shares are subject to the fulfillment, 2017on or before the Second 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; (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; and (c) The Stockholder Approval shall have been obtained; ii. The obligations of KiOR to sell the Shares are subject to the fulfillment, on or before the Second Closing, of each of the following conditions, unless otherwise waived by KiOR: (a) the Company shall have completed the Financing Event; (b) each Purchaser shall pay to KiOR, by wire transfer of immediately available funds, the Company may sellamount set forth opposite such Purchaser’s name under the heading “Aggregate Purchase Price” on the Schedule of Purchasers for the Shares being purchased by such Purchaser at the Second Closing. The Second 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 Aggregate Purchase Price indicated thereon, except, to the extent contemplated herein, such amounts are deemed to be converted into Shares at the Second Closing in exchange for the cancellation or conversion of indebtedness of KiOR to the applicable Purchaser under the terms of the Existing Loan as in effect on the date hereof; and (c) each of the representations and warranties of each Purchaser in this Agreement and the other Transaction Documents shall be true and correct on the date of the Second Closing, and the occurrence of such Second Closing shall be deemed to be a representation and warranty of each Purchaser that such representations and warranties are true and correct. iii. The obligations of each Purchaser to purchase the Shares are subject to the fulfillment, on or before the same terms and conditions as those contained in this Agreement, an additional number of shares of Preferred Stock equal to the Maximum Amount less the amount sold to Purchasers in the First Second Closing, to one or more Purchasers or of each of the following conditions, unless otherwise waived by such other purchasers as Purchaser: (a) the Company shall have completed the Financing Event, (b) the representations and Purchasers otherwise agree in warranties of the manner Company set forth in Section 5.5 4 of this Agreement shall be true and correct in all material respects (each except that such other purchaser, an materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality or “Additional Purchaser”); provided, however, that each Purchaser participating Material Adverse Effect” in the Initial Closing shall have the right to purchase up to its pro-rata share (based text thereof) on the amounts and as of Preferred Stock that such Purchaser purchased at the First Closing) of the portion of such Second Closing. Each Additional Purchaser that subscribes to the Second Closing shall be required to become a party to this Agreement and the Registration Rights Agreement by executing and delivering a counterpart signature page thereto, and shall otherwise be deemed a “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior to the Second Closing; (c) of the occurrence of Company shall have performed and complied with all 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 Second Closing and, if a Purchaser wants to participate, it will provide Closing; (d) the Company with at least one Trading Day notice Chief Executive Officer of such participation. On the Second Closing Date, each Purchaser Chief Financial Officer of KiOR shall deliver to the Company, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount for Purchasers at the Second Closing as set forth on a certificate certifying that the signature page hereto executed by such Purchaserconditions specified in clauses (b) and (c) have been fulfilled; (e) 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 the Company no such consent, authorization or approval shall have been revoked; (f) KiOR shall deliver to each of the Purchasers one or more certificates for the number of Shares set forth opposite such Purchaser’s name under the heading “Second Closing” on the Schedule of Purchasers registered in the name of such Purchaser; (g) each other Purchaser its respective shall have, substantially simultaneously with such Purchaser, consummated those transactions contemplated by this Agreement to occur at the Second Closing; and (h) 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 Preferred Stock, as determined pursuant Class A Common Stock to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable be issued at the Second Closing.

Second Closing. Following (a) Subject to the terms and conditions set forth in this Agreement, the closing of the transactions contemplated by Section 2.2(b) of this Agreement (the “Second Closing”) shall take place at the place and on the date (the “Second Closing Date”) as specified by Buyer in a notice to the Selling Shareholders duly signed and delivered by Buyer as promptly as practicable following the delivery of the 2008 Audited Financial Statements to Buyer (such Second Closing to take place within five (5) Business Days following such delivery and in any event no later than May 15, 2009, unless the delivery of the 2008 Audited Financial Statements has been delayed due to a failure on the part of Key Management to timely furnish the Auditors with the management accounts required for the preparation thereof, in which case such payment shall be made within five (5) Business Days of delivery of the 2008 Audited Financial Statements). (b) Upon the occurrence of a Prospective Event of Change in Control after the First Closing Date and until January 6before the Second Closing Date, 2017Buyer shall notify the Sellers’ Representative within three (3) Business Days of the occurrence of such Prospective Event of Change in Control, and the Company Second Closing and the Third Closing may sell, take place on the same terms and conditions as those contained in this Agreement, an additional number of shares of Preferred Stock equal to the Maximum Amount less the amount sold to Purchasers in the First Closing, to one or more Purchasers or such accelerated basis. Notwithstanding any other purchasers as the Company and Purchasers otherwise agree in the manner set forth in Section 5.5 provision of this Agreement (each such other purchaser, an “Additional Purchaser”); provided, however, that each Purchaser participating to the contrary in the Initial Closing shall have the right to purchase up to its pro-rata share event of a Prospective Event of Change in Control, (based on the amounts of Preferred Stock that such Purchaser purchased at the First Closingi) of the portion of such Second Closing. Each Additional Purchaser that subscribes to the Second Closing and the Third Closing shall take place immediately prior to the closing of such Prospective Event of Change in Control, (ii) the Second Installment Consideration shall be required equal to become US$68,906,250, payable in cash and (iii) the Third Installment Consideration shall be equal to US$68,906,250, payable in cash. (c) Upon the occurrence of a party to Key Management Dismissal Event after the First Closing Date and before the Second Closing Date, the Second Closing and the Third Closing shall take place on an accelerated basis. Notwithstanding any other provision of this Agreement to the contrary, (i) the Second Closing and the Registration Rights Agreement Third Closing shall take place within seven (7) Business Days of the occurrence of the Key Management Dismissal Event, (ii) the Second Installment Share Consideration shall be equal to US$90,781,250 divided by executing the Average FM Share Price, (iii) the Third Installment Share Consideration shall be equal to US$68,906,250 divided by the Average FM Share Price and delivering a counterpart signature page thereto, and (iv) the Additional Share Consideration shall otherwise be deemed a “Purchaser” for purposes of this Agreement. equal to US$21,875,000 divided by the Average FM Share Price. (d) The Company Sellers’ Representative shall provide Purchasers with at least 2 Trading Days’ prior notice deliver the Second Installment Allocation Schedule to Buyer no later than five (but not to exceed 3 Trading 5) Business Days prior to the Second ClosingClosing Date. (e) of the occurrence of At or prior to the Second Closing andClosing, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such participation. On the Second Closing Date, each Purchaser Buyer shall deliver to the Company, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount Sellers’ Representative for the benefit of the Selling Shareholders and the Option Holders true copies of the register of members of Buyer indicating the transfer to the Selling Shareholders and the Option Holders and registration in the name of the Selling Shareholders and the Option Holders in respect of the Second Closing Installment Share Consideration, if any, as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its opposite their respective shares of Preferred Stock, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth names in Section 2.2 deliverable at the Second Closing.Installment Allocation Schedule. Section 2.5

Second Closing. Following the First Closing Date and until January 6, 2017, the Company may sell, on the same terms and conditions as those contained in this Agreement, an additional number of shares of Preferred Stock equal to the Maximum Amount less the amount sold to Purchasers in the First Closing, to one or more Purchasers or such other purchasers as the Company and Purchasers otherwise agree in the manner set forth in Section 5.5 of this Agreement (each such other purchaser, an “Additional Purchaser”); provided, however, that each Purchaser participating in the Initial Closing shall have the right to purchase up to its pro-rata share (based on the amounts of Preferred Stock that such Purchaser purchased at the First Closing) of the portion of such Second Closing. Each Additional Purchaser that subscribes to the Second Closing shall be required to become a party to this Agreement and the Registration Rights Agreement by executing and delivering a counterpart signature page thereto, and shall otherwise be deemed a “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior to the Second Closing) of the occurrence of the Second Closing and, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such participation. On the Second Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, an aggregate of $9,606,027.00 of Unregistered ADSs and Warrants, which closing shall occur on the closing date of the Arrangement and Share Exchange (the “Second Closing”). Notwithstanding anything herein to the contrary, to the extent that a Purchaser determines, in its sole discretion, that such Purchaser’s Second Closing Subscription Amount (together with such Purchaser’s Affiliates and any Person acting as a group together with such Purchaser or any of such Purchaser’s Affiliates) would cause such Purchaser’s beneficial ownership of the Ordinary Shares to exceed the Beneficial Ownership Limitation, or as such Purchaser may otherwise choose, such Purchaser may elect to purchase Pre-Funded Warrants in lieu of the Unregistered ADSs as determined pursuant to Section 2.2(a). For purposes of this Section 2.1(b), the “Beneficial Ownership Limitation” shall be 4.99% (or, at the election of the Purchaser at the Second Closing, 9.99%) of the number of Ordinary Shares outstanding immediately after giving effect to the issuance of the securities on the Second Closing Date. In each case, the election to receive Pre-Funded Warrants is solely at the option of the Purchaser. At least five (5) Business Days before the anticipated Second Closing Date, the Company shall deliver written notice to Purchaser (the “Closing Notice”) specifying (i) the anticipated Second Closing Date and (ii) the escrow wire instructions for delivery of the Purchaser’s Second Closing Subscription Amount to the Escrow Agent. No later than two (2) Business Days prior to the Second Closing Date as set forth in the Closing Notice, the Purchaser shall deliver to the Company, via wire transfer or a certified checktransfer, in United States dollars and in immediately available funds funds, such amount equal to such Purchaser’s Second Closing Subscription Amount for the Second Closing as set forth on the signature page hereto executed by such Purchaser, and Purchaser to the Escrow Agent to the escrow account specified by the Company in the Closing Notice, such funds to be held by the Escrow Agent in escrow. The Company shall deposit the Ordinary Shares with the Depositary and deliver to each Purchaser its respective shares of Preferred Stock, Unregistered ADSs and Warrants as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Second Closing shall take place by remote communications and by the exchange of signatures by electronic transmission on the Second Closing Date, or at such other time, date and location as the parties shall mutually agree, and the Company and the Placement Agent shall deliver to the Escrow Agent the Form of Escrow Release Notice (as defined in the Escrow Agreement), duly executed.

Second Closing. Following (a) No sooner than 60 days prior to the First Closing Date scheduled exhaustion (pursuant to the R&D Budget) of the $1,250,000 of the Initial Aggregate Purchase Price allocated to the R&D Program, or at such other time as may be mutually agreed upon by the Company and until January 6, 2017the Purchaser, the Company may sell, on the same terms and conditions as those contained in this Agreement, an additional number of shares of Preferred Stock equal shall deliver to the Maximum Amount less Purchaser an updated R&D Budget (the amount sold to Purchasers in the First Closing, to one or more Purchasers or such other purchasers as the Company and Purchasers otherwise agree in the manner set forth in Section 5.5 of this Agreement (each such other purchaser, an “Additional PurchaserUpdated R&D Budget”); provided, howeverwhich Updated R&D Budget, that each Purchaser participating in together with an expenditure schedule and payment mechanism for the Initial Closing shall have the right to purchase up to its pro-rata share (based on the amounts of Preferred Stock that such Purchaser purchased at the First Closing) remaining funding of the portion of such Second Closing. Each Additional Purchaser that subscribes R&D Program, shall be subject to the Second Closing shall be required to become a party to this Agreement and the Registration Rights Agreement by executing and delivering a counterpart signature page thereto, and shall otherwise be deemed a “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior to the Second Closing) written approval of the occurrence Purchaser. (b) No later than 60 days following receipt by the Purchaser of the Second Closing andUpdated R&D Budget, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such participation. On the Second Closing Date, each Purchaser shall deliver to the Company, via wire transfer or Company a certified check, immediately available funds equal written notice (the “Second Closing Notice”) stating whether the Purchaser elects to such Purchaser’s Subscription Amount for proceed to the Second Closing (as set forth defined below), which determination shall be made by the Purchaser in its sole discretion. If the Purchaser does not elect to proceed to the Second Closing, then the parties hereto shall have no further rights or obligations under this Section 2 or under Section 5.7 hereof. (c) If the Purchaser elects to proceed to the Second Closing, within 15 days following the receipt of the Second Closing Notice a closing shall be held at the offices of ***, or at such other place as may be mutually agreed upon between the parties hereto, on such date and time as shall be mutually agreed upon between the parties hereto (the “Second Closing” and the date of the Second Closing, the “Second Closing Date”). (d) It shall be a condition to the obligation of the Company and the Purchaser to consummate the Second Closing that the NYSE Amex shall have approved the Additional Shares for listing on the signature page hereto executed by such NYSE Amex. (e) It shall be a condition to the obligation of the Purchaser to consummate the Second Closing that the Company shall have complied in all respects with its obligations in respect of the R&D Program including, without limitation, the R&D Budget. (f) At the Second Closing the following transactions shall take place, all of which shall be deemed to have occurred simultaneously: (i) The Company shall sell and issue to the Purchaser, and the Company Purchaser shall deliver purchase from the Company, the Additional Shares for an aggregate purchase price equal to each Purchaser its respective shares the amount required to complete funding of Preferred Stock, as determined the R&D Program (the “Additional Aggregate Purchase Price”) pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second ClosingUpdated R&D Budget.

Second Closing. Following (a) No sooner than 60 days prior to the First Closing Date scheduled exhaustion (pursuant to the R&D Budget) of the $1,250,000 of the Initial Aggregate Purchase Price allocated to the R&D Program, or at such other time as may be mutually agreed upon by the Company and until January 6, 2017the Purchaser, the Company may sell, on the same terms and conditions as those contained in this Agreement, an additional number of shares of Preferred Stock equal shall deliver to the Maximum Amount less Purchaser an updated R&D Budget (the amount sold to Purchasers in the First Closing, to one or more Purchasers or such other purchasers as the Company and Purchasers otherwise agree in the manner set forth in Section 5.5 of this Agreement (each such other purchaser, an “Additional PurchaserUpdated R&D Budget”); provided, howeverwhich Updated R&D Budget, that each Purchaser participating in together with an expenditure schedule and payment mechanism for the Initial Closing shall have the right to purchase up to its pro-rata share (based on the amounts of Preferred Stock that such Purchaser purchased at the First Closing) remaining funding of the portion of such Second Closing. Each Additional Purchaser that subscribes R&D Program, shall be subject to the Second Closing shall be required to become a party to this Agreement and the Registration Rights Agreement by executing and delivering a counterpart signature page thereto, and shall otherwise be deemed a “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior to the Second Closing) written approval of the occurrence Purchaser. (b) No later than 60 days following receipt by the Purchaser of the Second Closing andUpdated R&D Budget, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such participation. On the Second Closing Date, each Purchaser shall deliver to the Company a written notice (the “Second Closing Notice”) stating whether the Purchaser elects to proceed to the Second Closing (as defined below), which determination shall be made by the Purchaser in its sole discretion. If the Purchaser does not elect to proceed to the Second Closing, then the parties hereto shall have no further rights or obligations under this Section 2 or under Section 5.7 hereof. (c) If the Purchaser elects to proceed to the Second Closing, within 15 days following the receipt of the Second Closing Notice a closing shall be held at the offices of Loeb & Loeb LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as may be mutually agreed upon between the parties hereto, on such date and time as shall be mutually agreed upon between the parties hereto (the “Second Closing” and the date of the Second Closing, the “Second Closing Date”). (d) It shall be a condition to the obligation of the Company and the Purchaser to consummate the Second Closing that the NYSE Amex shall have approved the Additional Shares for listing on the NYSE Amex. (e) It shall be a condition to the obligation of the Purchaser to consummate the Second Closing that the Company shall have complied in all respects with its obligations in respect of the R&D Program including, without limitation, the R&D Budget. (f) At the Second Closing the following transactions shall take place, all of which shall be deemed to have occurred simultaneously: (i) The Company shall sell and issue to the Purchaser, and the Purchaser shall purchase from the Company, via the Additional Shares for an aggregate purchase price equal to the amount required to complete funding of the R&D Program (the “Additional Aggregate Purchase Price”) pursuant to the Updated R&D Budget. (ii) The Purchaser shall transfer to the Company the Additional Aggregate Purchase Price by wire transfer or a certified check, of immediately available funds equal to such Purchaser’s Subscription Amount for the Second Closing as set forth on account of the signature page hereto executed by such PurchaserCompany. (iii) If Additional Shares are being issued, and the Company shall deliver to each the Purchaser its respective shares a stock certificate, free and clear of Preferred Stock, all restrictive legends (except as determined pursuant to expressly provided in Section 2.2(a5.1(a)), evidencing the Additional Shares, registered in the name of the Purchaser. (iv) The Company shall provide the Purchaser with updated schedules to this Agreement, complete and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at accurate as of the Second Closing. (v) The Company shall provide the Purchaser with a compliance certificate, in form and substance reasonably satisfactory to the Purchaser, certifying the accuracy of the Company’s representations and warranties in the Transaction Documents as of the Second Closing Date; and any other documents reasonably requested by the Purchaser or its counsel in connection with the Second Closing. (vi) The Purchaser shall provide the Company with a compliance certificate, in form and substance reasonably satisfactory to the Company, certifying the accuracy of the Purchaser’s representations and warranties in the Transaction Documents as of the Second Closing Date; and any other documents reasonably requested by the Company or its counsel in connection with the Second Closing.

Second Closing. Following If, on the First Closing Date, the Approvals required for the sale of the DHI Stock set forth on Schedule 3.3(b) and 4.3(b) have not been received, but all other conditions set forth in Article VI have been satisfied or waived, the parties agree to proceed with the Closing, but only with respect to the GLHIC Stock, the GEGA Stock, and the PIC Stock. In such event, (a) the Purchase Price shall be reduced by the DHI Purchase Price; (b) the parties agree to proceed as promptly as practicable with the sale of the DHI Stock by Genworth to the Buyer (the “Second Closing”) for the DHI Purchase Price plus interest at the annual rate of the federal funds rate on the Closing Date as set forth in the “Money Rates” section of the eastern edition of The Wall Street Journal published for such date (the “Federal Funds Rate”), from and until January 6, 2017, including the Company may sellClosing Date to but excluding the Second Closing Date, on the same terms and conditions as those contained in this Agreement, an additional number of shares of Preferred Stock equal Agreement subject to the Maximum Amount less the amount sold to Purchasers in the First Closing, to one or more Purchasers or such other purchasers as the Company and Purchasers otherwise agree in the manner conditions set forth in Section 5.5 Schedule 6.4 and the receipt of this Agreement the applicable Approvals set forth in Schedule 3.3(b) and 4.3(b); and (each such other purchaserc) any and all agreements that were to be executed and delivered on the Closing shall be amended to the extent applicable in order to reflect the subsequent transfer of the DHI Stock. The Second Closing shall take place at the offices of Hunton & Xxxxxxxx, an “Additional Purchaser”)000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on the last Business Day of the calendar month during which the Approvals required pursuant to Schedule 3.3(b) and 4.3(b) with respect to the sale of the DHI Stock are received; provided, however, that each Purchaser participating in if such Approvals are received less than three Business Days prior to the Initial Closing shall have the right to purchase up to its pro-rata share (based on the amounts of Preferred Stock that such Purchaser purchased at the First Closing) of the portion end of such Second Closing. Each Additional Purchaser that subscribes to month, the Second Closing shall be required to become a party to this Agreement and the Registration Rights Agreement by executing and delivering a counterpart signature page theretolast Business Day of the month following such month, and shall otherwise be deemed a “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior to the Second Closing) of the occurrence of provided further that the Second Closing andmay occur on such other place, if a Purchaser wants to participate, it will provide date or time as the Company with at least one Trading Day notice of such participation. On parties may agree (the “Second Closing Date, each Purchaser shall deliver to the Company, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount for the Second Closing as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective shares of Preferred Stock, as determined pursuant to Section 2.2(a”), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second Closing.

Second Closing. Following Subject to the First terms and conditions of this Agreement, after the Closing Date and until January 6at any time on or prior to the date of the filing by the Company of the initial registration statement required to be filed by it under the Registration Rights Agreement, 2017at a second closing (the “Second Closing”), the Company may sell, on the same terms issue and conditions as those contained in this Agreement, an additional number of shares of Preferred Stock equal to the Maximum Amount less the amount sold to Purchasers in the First Closing, sell to one or more Purchasers or such other purchasers as individuals and entities approved by the Company and Purchasers otherwise agree in the manner set forth in Section 5.5 Company’s Board of this Agreement Directors (each such other purchaser, an “Additional PurchaserBuyer” and collectively, the “Additional Buyers”); provided, however, that ) an aggregate principal amount of Notes equal to $500,000 at the Purchase Price of $0.9300 for each Purchaser participating in the Initial Closing shall have the right $1.00 of principal amount of Notes and Warrants to purchase acquire up to its pro-rata share Fifty Three Million, Eight Hundred and Seventy Nine Thousand, Three Hundred and Ten (based on the amounts 53,879,310) shares of Preferred Stock that such Purchaser purchased Common Stock. All sales made at the First Closing) of the portion of such Second Closing. Each Additional Purchaser that subscribes to the Second Closing shall be required made on the terms and conditions set forth in this Agreement. At the Second Closing the representations and warranties of the Company set forth in Section 3 hereof shall speak as of the Closing Date (and the Company shall have no obligation to update the representations and warranties and the Disclosure Schedules to the date of the Second Closing), and the representations and warranties of the Additional Buyers shall speak as of the date of the Second Closing. At the Second Closing, (i) each Additional Buyer and the Company shall execute a counterpart signature page hereto and to the Registration Rights Agreement, (ii) the Company shall cause the Schedule of Buyers hereto to be updated to reflect the purchases made by the Additional Buyers, (iii) each Additional Buyer shall become a party to “Buyer” hereunder and the Notes and Warrants purchased by such Additional Buyer shall be deemed “Notes” and “Warrants,” respectively, for purposes of this Agreement and the Registration Rights Agreement by executing and delivering a counterpart signature page theretoother Transaction Documents, and shall otherwise be deemed a “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior iv) subject to the Second Closing) terms and conditions hereof, the Company will deliver to each of the occurrence of Additional Buyers purchasing Notes and Warrants at the Second Closing andthe applicable Notes and Warrants registered in the name of such Additional Buyer, if a Purchaser wants against payment to participate, it will provide the Company with at least one Trading Day notice of such participation. On the Second Closing DatePurchase Price therefor in cash by wire transfer, each Purchaser shall deliver check or other method acceptable to the Company, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount for the Second Closing as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective shares of Preferred Stock, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second Closing.

Second Closing. Following On the First Second Closing Date Date, upon the terms and until January 6, 2017conditions set forth herein, the Company may agrees to sell, on and the same terms Purchasers, severally and conditions as those contained in this Agreementnot jointly, agree to purchase, an additional number aggregate of $3,000,000 of shares of Preferred Stock with an aggregate Stated Value for each Purchaser equal to the Maximum such Purchaser’s Subscription Amount less the amount sold to Purchasers in the First Closing, to one or more Purchasers or such other purchasers as the Company and Purchasers otherwise agree in the manner set forth in Section 5.5 of this Agreement (each such other purchaser, an “Additional Purchaser”); provided, however, that each Purchaser participating in the Initial Closing shall have the right to purchase up to its pro-rata share (based on the amounts of Preferred Stock that signature page hereto executed by such Purchaser purchased at the First Closing) of the portion of such Second ClosingPurchaser, and Warrants as determined pursuant to Section 2.2(a). Each Additional Purchaser that subscribes to the The Second Closing shall be required to become a party to this Agreement occur on, or as soon as reasonably practicable following, and in any event within 5 Trading days of, the date on which the Registration Statement registering all of the Registrable Securities (as defined in the Registration Rights Agreement Agreement) is declared effective by executing and delivering a counterpart signature page thereto, and shall otherwise be deemed a the Commission (the “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior to the Second Closing) of the occurrence of the Second Closing and, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such participation”). On the Second Closing Date, each Purchaser shall deliver to the CompanyEscrow Agent, via wire transfer or a certified checktransfer, immediately available funds equal to such Purchaser’s Subscription Amount for the Second Closing as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective shares of Preferred StockStock with an aggregate Stated Value for each Purchaser equal to such Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser, and Warrants as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second Closing. In connection with the initial Registration Statement filed by the Company, upon receipt by the Company of notification (oral or written, whichever occurs earlier) from the Commission that such Registration Statement shall not be reviewed or shall not be subject to further review, the Company shall have promptly delivered written notice thereof to each Purchaser, which written notice (1) shall be delivered to the Purchasers contemporaneously with the Company’s filing with the Commission of a request of a request for acceleration in accordance with Rule 461 promulgated under the Securities Act and (2) shall include the proposed date of effectiveness of the Registration Statement, which shall not be later than 5 Trading Days following the delivery date of such notice to the Purchasers.

Second Closing. Following the First Closing Date and until January 6, 2017, the Company may sell, on the same terms and conditions as those contained in this Agreement, an additional number of shares of Preferred Stock equal Subject to the Maximum Amount less satisfaction (or express waiver in writing by the amount sold to Purchasers in applicable party) of the First Closing, to one or more Purchasers or such other purchasers as the Company and Purchasers otherwise agree in the manner conditions set forth in Section 5.5 of this Agreement 2.3 below (each such other purchaserincluding the Milestone Condition), an until January 30, 2024 (the “Additional PurchaserSecond Closing Deadline”); provided, however, that each Purchaser participating in the Initial Closing Company shall have notify and require the right Purchasers to purchase up to its pro-rata share consummate an additional closing (based on the amounts of Preferred Stock that such Purchaser purchased at the First “Second Closing”) of the portion an additional aggregate amount US$350,000 of such Second Closing. Each Additional Purchaser that subscribes to the Second Closing shall be required to become a party to this Agreement and the Registration Rights Agreement by executing and delivering a counterpart signature page thereto, and shall otherwise be deemed a “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior to the Second Closing) of the occurrence of the Second Closing and, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such participation. On the Second Closing Date, each Purchaser shall deliver to the Company, via wire transfer or a certified check, immediately available funds 6,306,307 Ordinary Shares equal to such Purchaser’s Subscription Amount for the (Second Closing Closing) as set forth on the signature page hereto executed by such Purchaser, on the same terms and conditions as the First Closing (including, for the sake of clarify, the PPS), which shall occur at the offices of the Company or such other location as the parties shall mutually agree by delivering to the Purchasers an irrevocable written notice (the “Second Closing Notice”), that the Company has met the Milestone Condition; provided that the Second Closing Notice is delivered to the Purchasers no later than three (3) Business Days following the Second Closing Deadline. The date and time of the Second Closing (the “Second Closing Date” and together with the First Closing Date, a “Closing Date”) shall be 10:00 a.m., New York time, on a Business Day identified in the Second Closing Notice; provided that the Second Closing Date shall be not earlier than five (5) Business Days following the delivery of the Second Closing Notice. Each Purchaser shall deliver to the Company, via wire transfer, immediately available funds equal to its Subscription Amount (Second Closing) and the Company shall deliver to each Purchaser its respective shares of Preferred Stock, Securities as determined pursuant to Section 2.2(a), ) and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the First Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Second ClosingClosing shall occur at the offices of the Company or such other location as the parties shall mutually agree.

Second Closing. Following The obligations of the First Investor hereunder at the Second Closing Date are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor’s sole benefit and until January 6, 2017, may be waived by the Investor at any time in its sole discretion by providing the Company may sell, on the same terms and conditions as those contained in this Agreement, an additional number of shares of Preferred Stock equal with prior written notice thereof: (i) The Second Initial Exchanged Common Shares shall have been deposited to the Maximum Amount less balance account of the amount sold Investor Broker at the Depository Trust Company in accordance with the instructions delivered by the Investor to Purchasers in the First Closing, to one or more Purchasers or such other purchasers as the Company and Purchasers otherwise agree in the manner set forth in Section 5.5 of this Agreement (each such other purchaser, an “Additional Purchaser”); provided, however, that each Purchaser participating in the Initial Closing shall have the right to purchase up to its pro-rata share (based on the amounts of Preferred Stock that such Purchaser purchased at the First Closing) of the portion of such Second Closing. Each Additional Purchaser that subscribes or prior to the Second Closing shall be required to become a party to this Agreement and the Registration Rights Agreement by executing and delivering a counterpart signature page thereto, and shall otherwise be deemed a “Purchaser” for purposes of this Agreement. Date. (ii) The Company shall provide Purchasers have delivered to the Investor the Second Cash Interest Amount by wire transfer of immediately available funds in accordance with at least 2 Trading Days’ prior notice (but not wire instructions delivered to exceed 3 Trading Days the Company prior to the Second Closing. (iii) The Investor shall have received the opinions of (i) the occurrence Company’s General Counsel and (ii) Xxxxxxxxxx Xxxxxxx PC, the Company’s outside counsel, each dated as of the Second Closing and, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such participation. On the Second Closing Date, each Purchaser in substantially the form of Exhibit A-1 and Exhibit A-2 attached hereto. (iv) The Company shall deliver have delivered to the CompanyInvestor a certificate, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount for executed by the Secretary of the Company and dated as of the Second Closing Date, as to (i) the resolutions consistent with Section 3(b) of the Securities Purchase Agreement, as adopted by the Company’s Board of Directors in a form reasonably acceptable to the Investor, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at the Second Closing, in the form attached hereto as Exhibit B. (v) The representations and warranties of the Company set forth herein (except as set forth on in the signature page hereto executed by Disclosure Schedule delivered to the Investor in connection with the First Closing or any Additional Disclosure Schedule delivered to the Investor pursuant to Section 3(q) above) shall be true and correct in all respects as of the date when made and as of the Second Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such Purchaser, specified date) and the Company shall deliver have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents to each Purchaser its respective shares be performed, satisfied or complied with by the Company at or prior to the Second Closing Date. The Investor shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of Preferred Stockthe Company, dated as of the Second Closing Date, to the foregoing effect in the form attached hereto as Exhibit C. (vi) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the transactions contemplated hereby. (vii) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as determined pursuant to Section 2.2(a)of the Second Closing Date, and by the Company and each Purchaser shall deliver SEC or the other items Principal Market from trading on the Principal Market nor, except as set forth in Section 2.2 deliverable at the Company’s filings with the SEC, shall suspension by the SEC or the Principal Market have been threatened, as of the Second ClosingClosing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market. (viii) No default or event of default under any of the Company’s credit facilities shall exist nor shall the transactions contemplated hereby shall cause such a default or event of default to occur. (ix) Each of (i) the arithmetic average of the Weighted Average Prices (as defined in the Notes) of the Common Stock on each of the ten (10) Trading Days immediately preceding the Second Closing Date and (ii) the Weighted Average Price of the Common Stock on the Trading Day immediately preceding the Second Closing Date, shall have been at or above $1.50 (x) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.

Second Closing. Following (a) Subject to completion of the First Closing Date and until January 6actions set out below, 2017, the Company may sell, on the same terms and conditions as those contained in this Agreement, an additional number of shares of Preferred Stock equal to the Maximum Amount less the amount sold to Purchasers in the First Closing, to one or more Purchasers or such other purchasers as the Company and Purchasers otherwise agree in the manner set forth in Section 5.5 of this Agreement (each such other purchaser, an “Additional Purchaser”); provided, however, that each Purchaser participating in the Initial Second Closing shall have the right to purchase up to its pro-rata share (based on the amounts of Preferred Stock that such Purchaser purchased take place at the First Closing) registered office of the portion Company, or remotely by the exchange of such Second Closing. Each Additional Purchaser that subscribes documents and signatures (or their electronic counterparts), of the documents to be delivered at the Second Closing shall be required to become a party to this Agreement and the Registration Rights Agreement by executing and delivering a counterpart signature page thereto, and shall otherwise be deemed a “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior to the Second Closing) of the occurrence of the Second Closing and, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such participation. On on the Second Closing Date, each Purchaser (provided that the Buyer and the Buyer Parent shall cause the Company to undertake the actions of the Company listed below): (i) Continuing Selling Parties shall have requested for approval from the Reserve Bank of India, in accordance with the Foreign Exchange Management (Overseas Investment) Rules, 2022 and regulations framed thereunder, for the Share Swap; (ii) The Company shall have obtained a valuation report determining the fair market value of the Securities of the Company prepared and issued by qualified persons in accordance with the Foreign Exchange Management Act, 2000 and rules and regulations framed thereunder; (iii) The Company shall have obtained a valuation report determining the fair market value of the Securities of the Company prepared and issued by qualified persons in accordance with Section 50CA and the Section 56(2)(x) of the Income-tax Act, 1961 read with Rule 11UA of the Income-tax Rules, 1962; (iv) The Company shall have obtained a valuation report, in a form acceptable to the Buyer, determining the fair market value of Capital Stock of Amtran prepared and issued by qualified persons in accordance with Section 9 of the Income-tax Act, 1961 read with Rule 11UB of the Income-tax Rules, 1962; (v) The Continuing Selling Parties shall have delivered to the Buyer a certificate from a qualified chartered accountant, certifying that as of such Second Closing Date, that there are no circumstances whatsoever that would render the sale and transfer of any of the Securities by such Seller to the Buyer on the relevant Second Closing Date, as contemplated by this Agreement or the Shareholders’ Agreement, void or voidable, under the provisions of Section 281 of the Income-tax Act, 1961, Section 81 of the Central Goods and Services Tax Act, 2017, as applicable; (vi) Each of the Continuing Selling Parties shall have confirmed in writing to the Buyer whether its residency status at Second Closing for the purposes of FDI Laws is as described in (i) or (ii) of Section 3.2(g). (vii) If any Continuing Selling Party has residency status at Second Closing for the purposes of FDI Laws as described in sub-section (i) of Section 3.2(g), then such Continuing Selling Party shall have made commercially reasonable efforts to deliver to the CompanyBuyer a draft Form FC-TRS with all fields and information filled-in and together with attachments thereto (in draft form, via wire transfer or a certified check, immediately where final versions are not available funds equal prior to such Purchaser’s Subscription Amount for the Second Closing as set forth on the signature page hereto executed Date), in each case reviewed and pre-approved by such PurchaserContinuing Selling Party’s Authorized Dealer bank; and (viii) If any Continuing Selling Party has residency status at Second Closing for the purposes of FDI Laws as described in sub-section (i) of Section 3.2(g), then such Continuing Selling Party shall have made commercially reasonable efforts to deliver to the Buyer the drafts, as pre-approved by such Continuing Selling Party’s Authorized Dealer bank, of (y) consent letter, and (z) declarations to be executed and delivered by Buyer, for attachment to the Company shall deliver Form FC-TRS to each Purchaser its respective shares of Preferred Stock, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second Closingbe filed by such Continuing Selling Party.

Second Closing. Following (a) Xxxxxxxx shall not be required to deliver the Xxxxxxxx Shares to IntegraMed, and IntegraMed shall not be required to pay any portion of the Purchase Price relating to the Xxxxxxxx Shares, on or before November 1, 1998, subject to the following conditions, all of which conditions shall be reflected in the terms of a Voting Trust Agreement (the "Voting Trust Agreement") by and among Xxxxxxxx and Canet as Voting Trustee, in the form attached hereto as Exhibit D. (b) At the First Closing Date hereunder, Xxxxxxxx shall: (i) deliver the stock certificates evidencing ownership of the Xxxxxxxx Shares together with a stock power, endorsed in blank and until January 6guaranteed as counsel for IntegraMed shall reasonably require, 2017, the Company may sell, on the same terms and conditions as those contained in this Agreement, an additional number of shares of Preferred Stock equal to the Maximum Amount less Voting Trustee; and (ii) execute and enter into the amount sold Voting Trust Agreement naming Canet as Voting Trustee with respect to Purchasers in the First ClosingXxxxxxxx Shares for all purposes. (c) After November 1, to one or more Purchasers or such other purchasers as the Company and Purchasers otherwise agree in the manner set forth in Section 5.5 of this Agreement (each such other purchaser1998, an “Additional Purchaser”); provided, however, that each Purchaser participating in the Initial Closing IntegraMed shall have the right right, in its sole and absolute discretion, to purchase up (i) fix the Second Closing Date (which shall be no later than November 15, 1998), and (ii) upon payment and delivery to its pro-rata share (based on the amounts of Preferred Stock that such Purchaser purchased at the First Closing) Xxxxxxxx of the portion of such the Purchase Price attributable to the Xxxxxxxx Shares, cause the Voting Trustee to transfer and deliver the Xxxxxxxx Shares to IntegraMed. The Voting Trust Agreement shall automatically expire and be deemed revoked when the Xxxxxxxx Shares are transferred to IntegraMed. At the Second Closing. Each Additional Purchaser that subscribes , Xxxxxxxx and IntegraMed shall execute and enter into a Personal Responsibility Agreement in the form of Exhibit H attached hereto. (d) At any time after the First Closing Date, IntegraMed shall have the right, in its sole and absolute discretion, to take all of the Second Closing shall be required to become actions described in Section 3.02(c) above if Xxxxxxxx'x Employment Agreement is terminated for any reason whatsoever (including, without limitation, his death or disability) or if Xxxxxxxx is or becomes a party to this Agreement and the Registration Rights Agreement by executing and delivering a counterpart signature page thereto, and shall otherwise any personal bankruptcy or insolvency proceeding. (e) The Note to be deemed a “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice (but not issued to exceed 3 Trading Days prior to the Second Closing) of the occurrence Xxxxxxxx as of the Second Closing andDate shall be subject to offset in accordance with Section 6.02(c) below, if a Purchaser wants whether or not the claims giving rise to participate, it will provide the Company with at least one Trading Day notice of such participation. On right to offset arise before or after the Second Closing Date. (f) Each of IntegraMed and Xxxxxxxx shall be entitled to all available legal and equitable remedies, each Purchaser shall deliver including, without limitation, the right to seek specific performance, to enforce the other party's obligations with respect to the Company, via wire transfer or a certified check, immediately available funds equal purchase of the Xxxxxxxx Shares and shall also be entitled to such Purchaser’s Subscription Amount for the Second Closing as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective shares of Preferred Stock, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver require the other items set forth party to pay to the enforcing party all reasonable costs and expenses(including professional fees and expenses) of the other party incurred in Section 2.2 deliverable at connection with the Second Closingenforcement of such party's obligation to purchase or sell the Xxxxxxxx Shares.

Second Closing. Following Subject to the First Closing Date and until January 6, 2017, the Company may sell, on the same terms and conditions as those contained in this Agreement, an additional number of shares of Preferred Stock equal to the Maximum Amount less the amount sold to Purchasers in the First Closing, to one or more Purchasers or such other purchasers as the Company and Purchasers otherwise agree in the manner set forth in Section 5.5 of this Agreement and upon the approval of upon the Company’s Board of Directors and the holders of a majority in interest of the then outstanding Series D Preferred Stock, the Purchasers (or any affiliate of a Purchaser) agree, severally and not jointly, to purchase, and the Company agrees to sell and issue up to 266,099 shares of Series D Preferred Stock to Emergence Capital Partners, L.P., Emergence Capital Associates, L.P., and Emergence Capital Partners SBIC, L.P. (or any affiliate thereof) and up to 532,198 shares of Series D Preferred Stock to each such other purchaser, an “Additional Purchaser”); provided, however, that each Purchaser participating in stockholder who holds shares of the Company’s Preferred Stock as of the Initial Closing shall have (or any affiliate thereof) on a pro rata basis at the right to purchase up to its pro-rata share (based price and on the amounts terms set forth herein at a single subsequent closing (the “Subsequent Closing”). Upon payment of the purchase price for the Series D Preferred Stock that being purchased and execution of a signature page counterpart to this Agreement and the Third Amended and Restated Investor Rights Agreement of even date herewith and attached hereto as Exhibit D (the “Investor Rights Agreement”), the Third Amended and Restated Voting Agreement of even date herewith and attached hereto as Exhibit E (the “Voting Agreement”), and the Third Amended and Restated Co-Sale Agreement of even date herewith and attached hereto as Exhibit F (the “Co-Sale Agreement” and together with the Investor Rights Agreement and the Voting Agreement the “Investment Agreements”), and without need for an amendment hereto or thereto except to add such Purchaser purchased at Purchaser’s name to Exhibit A to this Agreement and to the First Closing) appropriate exhibits of the portion of Investment Agreements, any such Second Closing. Each Additional Purchaser that subscribes to the Second Closing purchaser shall be required to become a party to this Agreement and the Registration Rights Agreement by executing and delivering a counterpart signature page theretoInvestment Agreements, and shall otherwise be deemed a “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior to Agreement and the Second Closing) Investment Agreements, in each case as of the occurrence date of the Second Closing and, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such participation. On the Second Closing Date, each Purchaser shall deliver to the Company, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount for the Second Closing as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective shares of Preferred Stock, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second Closing.

Second Closing. Following The Purchasers shall purchase, and the First Company shall issue and sell, additional Shares as follows: (a) The closing of any such purchase and sale (a “Second Closing”) shall take place at the offices of the Company, 00000 Xxxxxxxx Xxxxx Road, Suite 500, Chesterfield, Missouri 63017, at 10:00 a.m. CDT at such time and date as shall be set forth in a written notice from the Company to each Purchaser (or such later date agreed to by the Company and the Purchasers), which may be sent by electronic transmission, at least seven (7) calendar days prior to the Second Closing. Such written notice shall include a copy of the Revised Financial Model. The first date on which a Second Closing Date and until January 6, 2017occurs is referred to herein as the “Second Closing Date.” Prior to the Second Closing Date, the Company shall distribute to each of the Purchasers a copy of the Amended and Restated Credit Agreement. (b) Each Purchaser which finds the Revised Financial Model unacceptable shall have the option to reduce the number of Shares it will purchase at the Second Closing or may sellcancel its agreement to purchase Shares at the Second Closing. Each Purchaser which finds the Revised Financial Model to be acceptable, or which finds the Revised Financial Model to be unacceptable but nonetheless desires to purchase Shares at the Second Closing, shall notify the Company in writing, or by electronic transmission, by 5:00 p.m., CDT on the same terms date that is two calendar days prior to the scheduled Second Closing Date (as specified in the Company’s notice referred to in paragraph (a) above) that such Purchaser either (i) finds the Revised Financial Model acceptable and conditions as those contained desires to purchase the Shares specified in this Agreement, an additional such notice from such Purchaser at the Second Closing (which number of shares Shares may be the same or fewer than the number of Preferred Stock equal Shares set forth next to such Purchaser’s name on Exhibit A under the Maximum Amount less column “Second Closing Date Shares”) or (ii) finds the amount sold Revised Financial Model unacceptable, but nonetheless desires to Purchasers purchase the Shares specified in such notice from such Purchaser at the Second Closing (which number of Shares may be the same as or fewer than the number of Shares set forth next to such Purchaser’s name on Exhibit A under the column “Second Closing Date Shares”). Notwithstanding the foregoing, the Company shall have the absolute right to accept any such notification referred to in the First Closingpreceding sentence from any Purchaser or only certain Purchasers (as determined by the Company in its sole and absolute discretion) at any time after the expiration of the period referred to in the preceding sentence; provided that no Second Closing may occur at any time after August 31, to one or more Purchasers or 2002. If the Company accepts any such other purchasers as notice at any time following the Second Closing Date, the Company and Purchasers otherwise agree such Purchaser shall promptly close such purchase and sale on such date as specified by Company. Any Purchaser that has not provided a notice to the Company as set forth in this Section 2.4(b) prior to the expiration of such period (as may be extended at any time by the Company in its sole and absolute discretion for any Purchaser or only certain Purchasers) shall be conclusively deemed to have (i) found the Revised Financial Model unacceptable and (ii) elected not to participate in the Second Closing. Any Second Closing that occurs following the Second Closing Date must be approved by the Board of Directors of the Company. (c) Subject to Section 2.4(b) above and subject to satisfaction of the conditions specified in Section 5.3, each Purchaser which has provided a notice to the Company in the manner set forth in Section 5.5 2.4(b) above shall be obligated to purchase on the Second Closing Date (or such later date as may have been agreed to by the Company and the Purchasers) the lesser of this Agreement the number of Shares set forth next to such Purchaser’s name on Exhibit A under the column “Second Closing Date Shares,” or such number of Shares as may be specified by the Purchaser pursuant to Section 2.4(b). (each such other purchaser, an “Additional Purchaser”); provided, however, that each Purchaser participating d) The maximum number of Shares which the Company will issue and sell in the Initial Closing shall have and the right Second Closing, taken together, will not exceed 56,666,666. (e) At any Second Closing, the Company will deliver to purchase up each Purchaser a certificate evidencing the number of shares of Series A Preferred Stock to its pro-rata share (based be purchased by such Purchaser at the Second Closing as provided above against payment of the Purchase Price for all such Shares in immediately available funds. The Series A Preferred Stock to be delivered at the Second Closing will be issued to the appropriate Purchaser on the amounts date of Preferred Stock that such Second Closing and registered in such Purchaser’s name in the Company’s records in the amount purchased by such Purchaser purchased at on the First Closing) of the portion date of such Second Closing. Each Additional Purchaser that subscribes to the Second Closing shall be required to become a party to this Agreement and the Registration Rights Agreement by executing and delivering a counterpart signature page thereto, and shall otherwise be deemed a “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior to the Second Closing) of the occurrence of the Second Closing and, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such participation. On Promptly following the Second Closing Date, each Purchaser the Company shall deliver cause Exhibit A to this Agreement to be amended to reflect the Company, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount for actual purchases made by the Purchasers on the Second Closing as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective shares of Preferred Stock, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second ClosingDate.

Second Closing. Following (a) Subject to the terms and conditions set forth in this Agreement, the closing of the transactions contemplated by Section 2.2(b) of this Agreement (the “Second Closing”) shall take place at the place and on the date (the “Second Closing Date”) as specified by Buyer in a notice to the Selling Shareholders duly signed and delivered by Buyer as promptly as practicable following the delivery of the 2008 Audited Financial Statements to Buyer (such Second Closing to take place within five (5) Business Days following such delivery and in any event no later than May 15, 2009, unless the delivery of the 2008 Audited Financial Statements has been delayed due to a failure on the part of Key Management to timely furnish the Auditors with the management accounts required for the preparation thereof, in which case such payment shall be made within five (5) Business Days of delivery of the 2008 Audited Financial Statements). (b) Upon the occurrence of a Prospective Event of Change in Control after the First Closing Date and until January 6before the Second Closing Date, 2017Buyer shall notify the Sellers’ Representative within three (3) Business Days of the occurrence of such Prospective Event of Change in Control, and the Company Second Closing and the Third Closing may sell, take place on the same terms and conditions as those contained in this Agreement, an additional number of shares of Preferred Stock equal to the Maximum Amount less the amount sold to Purchasers in the First Closing, to one or more Purchasers or such accelerated basis. Notwithstanding any other purchasers as the Company and Purchasers otherwise agree in the manner set forth in Section 5.5 provision of this Agreement (each such other purchaser, an “Additional Purchaser”); provided, however, that each Purchaser participating to the contrary in the Initial Closing shall have the right to purchase up to its pro-rata share event of a Prospective Event of Change in Control, (based on the amounts of Preferred Stock that such Purchaser purchased at the First Closingi) of the portion of such Second Closing. Each Additional Purchaser that subscribes to the Second Closing and the Third Closing shall take place immediately prior to the closing of such Prospective Event of Change in Control, (ii) the Second Installment Consideration shall be required equal to become US$68,906,250, payable in cash and (iii) the Third Installment Consideration shall be equal to US$68,906,250, payable in cash. (c) Upon the occurrence of a party to Key Management Dismissal Event after the First Closing Date and before the Second Closing Date, the Second Closing and the Third Closing shall take place on an accelerated basis. Notwithstanding any other provision of this Agreement to the contrary, (i) the Second Closing and the Registration Rights Agreement Third Closing shall take place within seven (7) Business Days of the occurrence of the Key Management Dismissal Event, (ii) the Second Installment Share Consideration shall be equal to US$90,781,250 divided by executing the Average FM Share Price, (iii) the Third Installment Share Consideration shall be equal to US$68,906,250 divided by the Average FM Share Price and delivering a counterpart signature page thereto, and (iv) the Additional Share Consideration shall otherwise be deemed a “Purchaser” for purposes of this Agreement. equal to US$21,875,000 divided by the Average FM Share Price. (d) The Company Sellers’ Representative shall provide Purchasers with at least 2 Trading Days’ prior notice deliver the Second Installment Allocation Schedule to Buyer no later than five (but not to exceed 3 Trading 5) Business Days prior to the Second ClosingClosing Date. (e) of the occurrence of At or prior to the Second Closing andClosing, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such participation. On the Second Closing Date, each Purchaser Buyer shall deliver to the Company, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount Sellers’ Representative for the benefit of the Selling Shareholders and the Option Holders true copies of the register of members of Buyer indicating the transfer to the Selling Shareholders and the Option Holders and registration in the name of the Selling Shareholders and the Option Holders in respect of the Second Closing Installment Share Consideration, if any, as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its opposite their respective shares of Preferred Stock, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth names in Section 2.2 deliverable at the Second ClosingInstallment Allocation Schedule.

Second Closing. Following On the First Second Closing Date Date, upon the terms and until January 6, 2017conditions set forth herein, the Company may agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, up to an aggregate of $_____ of Shares and Warrants which closing shall occur on, or as soon as reasonably practicable following, and in any event within 5 Trading days of, the date on which the same terms and conditions Registration Statement registering all of the Registrable Securities (as those contained in this Agreement, an additional number of shares of Preferred Stock equal to the Maximum Amount less the amount sold to Purchasers defined in the First Registration Rights Agreement) is filed with the Commission (the “Second Closing, to one or more Purchasers or such other purchasers as the Company and Purchasers otherwise agree in the manner set forth in Section 5.5 of this Agreement (each such other purchaser, an “Additional Purchaser”); provided, however, that each that, to the extent a Purchaser participating determines, in the Initial Closing shall have the right to purchase up to its pro-rata share (based on the amounts of Preferred Stock sole discretion, that such Purchaser purchased at the First Closing(together with such Purchaser’s Affiliates, and any Person acting as a group together with such purchaser or any of such Purchaser’s Affiliates) would beneficially own in excess of the portion Beneficial Ownership Limitation, in lieu of purchasing such Second Closing. Each Additional Purchaser that subscribes to Shares in excess of the Second Closing shall be required to become a party to this Agreement and the Registration Rights Agreement by executing and delivering a counterpart signature page thereto, and shall otherwise be deemed a “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with Beneficial Ownership Limitation at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior to the Second Closing) , such Purchaser may elect to purchase such Shares on the Third Closing Date. The “Beneficial Ownership Limitation” shall be 9.99% of the occurrence number of shares of the Second Closing and, if a Purchaser wants Common Stock outstanding immediately after giving effect to participate, it will provide the Company with at least one Trading Day notice issuance of such participation. On the Second Securities on the Closing Date, each . Each Purchaser shall deliver to the Company, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount for with respect to the Second Closing as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective shares of Preferred StockShares and a Warrant, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Second Closing shall occur at the offices of EGS or such other location as the parties shall mutually agree.

Second Closing. Following the First Closing Date and until January 6, 2017, the (a) The Company may sell, following the date (the "SECOND CLOSING TRIGGER DATE") on the same terms and conditions as those contained in this Agreement, an additional number of shares of Preferred Stock equal to the Maximum Amount less the amount sold to Purchasers in the First Closing, to one or more Purchasers or such other purchasers as the Company and Purchasers otherwise agree in the manner set forth in Section 5.5 of this Agreement (which each such other purchaser, an “Additional Purchaser”); provided, however, that each Purchaser participating in the Initial Closing shall have the right to purchase up to its pro-rata share (based on the amounts of Preferred Stock that such Purchaser purchased at the First Closing) of the portion of such Second Closing. Each Additional Purchaser that subscribes to the Borrower Second Closing shall Deliverables pursuant to Section 2.7 can be required delivered to become each Lender require a party Second Closing to this Agreement and the Registration Rights Agreement occur by executing and delivering a counterpart signature page thereto, and shall otherwise be deemed a “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ prior written notice to each Lender within five (but not to exceed 3 5) Trading Days prior to the Second Closing) of the occurrence of the Second Closing and, if a Purchaser wants to participate, it will provide Trigger Date (the Company with at least one Trading Day notice "SECOND CLOSING NOTICE") indicating the Borrower's exercise of such participation. On its rights under this Section 2.2 and the date of the Second Closing Date, each Purchaser which date shall deliver to be the Company, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount for 10th Trading Day following the Second Closing Notice (the "SECOND CLOSING DATE"). The purchase and sale of the Second Closing Notes pursuant to the terms of this Section 2.2 shall take place at the offices of Proskauer Rose LLP, 0000 Xxxxxxxx, Xxx Xxxx, XX 00000, unless the requirement to deliver the Second Closing Deliverables or any portion thereof, as set forth on applicable, has been waived by the signature page hereto executed by such PurchaserRequired Lenders. (b) Subject to the terms and conditions of this Agreement, each Lender agrees, severally and not jointly, to purchase at the Second Closing and the Company shall deliver Borrower agrees to sell and issue to each Purchaser its respective shares of Preferred Stock, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable Lender at the Second Closing, that aggregate principal amount of Notes set forth opposite such Lender's name on Schedule A hereto under the heading "Second Closing Notes" and a Warrant, for the aggregate purchase price ("SECOND CLOSING PURCHASE PRICE") set forth opposite such Lender's name on Schedule A hereto under the heading "Second Closing Purchase Price".

Second Closing. Following On the First Second Closing Date Date, upon the terms and until January 6, 2017subject to the conditions set forth herein, the Company may agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, an aggregate of 3,000 Preferred Shares with an aggregate Stated Value for each Purchaser equal to such Purchaser’s Subscription Amount as set forth on the same terms and conditions signature page hereto executed by such Purchaser, as those contained in this Agreement, an additional number of shares of Preferred Stock equal determined pursuant to the Maximum Amount less the amount sold to Purchasers in the First Closing, to one or more Purchasers or such other purchasers as the Company and Purchasers otherwise agree in the manner set forth in Section 5.5 of this Agreement (each such other purchaser, an “Additional Purchaser”2.2(a); provided, however, that each Purchaser participating in the Initial Closing shall have the right to purchase up to its pro-rata share (based on the amounts of Preferred Stock that such Purchaser purchased at the First Closing) of the portion of such Second Closing. Each Additional Purchaser that subscribes to the The Second Closing shall be required to become a party to this Agreement occur on, or as soon as reasonably practicable following, and in any event within 5 Trading Days of, the date on which the Registration Statement registering all of the Registrable Securities (as defined in the Registration Rights Agreement Agreement) is declared effective by executing and delivering a counterpart signature page thereto, and shall otherwise be deemed a the Commission (the “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior to the Second Closing) of the occurrence of the Second Closing and, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such participation”). On the Second Closing Date, each Purchaser shall deliver to the Company, via wire transfer or a certified checktransfer, immediately available funds equal to such Purchaser’s Subscription Amount for the Second Closing as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective shares of Preferred StockShares and Warrants, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second Closing. In connection with the initial Registration Statement to be filed by the Company, when the Company reasonably expects that such Registration Statement may become effective in the near future, the Company shall provide the Purchasers with a written notice specifying the expected date of effectiveness, which shall not be less than 21 days following the delivery date of such notice to the Purchasers. upon receipt by the Company of notification (oral or written, whichever occurs earlier) from the Commission that such Registration Statement shall not be reviewed or shall not be subject to further review, the Company shall have promptly delivered written notice thereof to each Purchaser, which written notice (1) shall be delivered to the Purchasers prior to the Company’s filing with the Commission of a request of a request for acceleration in accordance with Rule 461 promulgated under the Securities Act and (2) shall include the proposed date of effectiveness of the Registration Statement, which shall not be less than eight (8) days following the delivery date of such notice to the Purchasers.

Second Closing. Following (i) On or prior to the First Second Closing Date and until January 6, 2017Date, the Company may sell, on shall deliver or cause to be delivered to each Purchaser the same terms and conditions as those contained in this Agreement, an additional number of shares of Preferred Stock equal following: (A) the schedule to the Maximum Amount less Note referred to in Section 2.2(a)(i)(B) reflecting the amount sold to Purchasers in updated Principal Amount, as set forth on Schedule 1 hereto; (B) a certificate of the First ClosingPresident of the Company, to one or more Purchasers or such other purchasers dated as of the Company and Purchasers otherwise agree in Second Closing Date, certifying that the manner conditions set forth in Section 5.5 of this Agreement 2.3(b)(ii) below have been fulfilled; (each such other purchaser, an “Additional Purchaser”); provided, however, that each Purchaser participating in the Initial Closing shall have the right to purchase up to its pro-rata share (based on the amounts of Preferred Stock that such Purchaser purchased at the First ClosingC) a certificate of the portion of such Second Closing. Each Additional Purchaser that subscribes to the Second Closing shall be required to become a party to this Agreement and the Registration Rights Agreement by executing and delivering a counterpart signature page thereto, and shall otherwise be deemed a “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior to the Second Closing) Secretary of the occurrence Company, dated as of the Second Closing andDate, if a Purchaser wants to participatecertifying (a) the Operating Agreement, it will provide as amended by the Operating Agreement Amendment, (b) resolutions of the Board of Directors of the Company approving the Transaction Agreements and all transactions contemplated under the Transaction Agreements, and (c) resolutions of the Members approving the Transaction Agreements and all transactions contemplated under the Transaction Agreements; (D) evidence of the filed UCC-1 financing statement with at least one Trading Day notice the appropriate division of such participation. the Secretary of State of Delaware with respect to the Purchaser’s security interest under the Security Agreement; (E) evidence that intellectual property security agreements, in form and substance acceptable to the Purchasers, have been filed with the United States Copyright Office and the United States Patent and Trademark Office, as applicable; (F) evidence of the filed UCC-3 financing statement with the appropriate division of the Secretary of State of Delaware with respect to the Existing Security Agreement; and (G) the Operating Agreement Amendment signed by all Members the Company. (ii) On or prior to the Second Closing Date, each Purchaser shall deliver or cause to be delivered to the Company, via wire transfer or a certified check, immediately available funds equal to Company such Purchaser’s Subscription Amount for the Second Closing Amount, as set forth on Schedule 1 hereto, by wire transfer to the signature page hereto executed account specified in writing by such Purchaser, and the Company shall deliver to each Purchaser its respective shares of Preferred Stock, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second ClosingCompany.

Second Closing. Following The Second Closing shall be for $750,000 of the First aggregate Subscription Amount subscribed for by all Purchasers hereunder and shall occur within 5 Business Days of the date which is the latest of (i) the date the Company files its Annual Report for the year ended June 30, 2007 with the Commission, (ii) the date the Company files its Quarterly Report for the quarter ended September 30, 2007 with the Commission and (iii) the date the Company is otherwise current in its reporting obligations under the Exchange Act (and indicated compliance with such reporting obligations on the cover page of its most recent period report filed with the Commission), and in any event on or before March 15, 2008. . (a) On or before each Closing Date and until January 6, 2017(except as noted), the Company may sell, on shall deliver or cause to be delivered to each Purchaser the same terms and conditions following: (i) as those contained in this Agreement, an additional number of shares of Preferred Stock equal to the Maximum Amount less the amount sold to Purchasers in the First Closing, to one or more Purchasers or such other purchasers as the Company and Purchasers otherwise agree in the manner set forth in Section 5.5 of this Agreement duly executed by the Company; (each such other purchaserii) a legal opinion of Company Counsel, an “Additional Purchaser”); provided, however, that each Purchaser participating in substantially the Initial Closing shall have the right form of Exhibit D attached hereto; (iii) as to purchase up to its pro-rata share (based on the amounts of Preferred Stock that such Purchaser purchased at the First Closing) of , a Note with a principal amount equal to such Purchaser’s Subscription Amount for the portion First Closing as set forth on its signature page hereto, registered in the name of such Second Closing. Each Additional Purchaser that subscribes to the Second Closing shall be required to become a party to this Agreement and the Registration Rights Agreement by executing and delivering a counterpart signature page thereto, and shall otherwise be deemed a “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice ; (but not to exceed 3 Trading Days prior iv) as to the Second Closing) of the occurrence of the Second Closing and, if a Purchaser wants to participate, it will provide the Company Note with at least one Trading Day notice of such participation. On the Second Closing Date, each Purchaser shall deliver to the Company, via wire transfer or a certified check, immediately available funds principal amount equal to such Purchaser’s Subscription Amount for the Second Closing as set forth on the its signature page hereto hereto, registered in the name of such Purchaser; (v) as to the First Closing, a Warrant registered in the name of such Purchaser to purchase up to such Purchaser’s pro-rata share of 75,000 shares of Common Stock, with an exercise price equal to $_____1, subject to adjustment therein, it being understood that Warrants to purchase a total 1 110% of the closing price of the Common Stock on the Trading Day immediately prior to the date hereof. of 75,000 shares shall be issued at the First Closing; (vi) a certificate of the Secretary of the Company, dated as of the Closing Date, (w) certifying the resolutions adopted unanimously by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Securities, (x) certifying the current versions of the certificate or articles of incorporation, as amended and by-laws of the Company and its Subsidiaries, (y) certifying as to the signatures and authority of persons signing the Transaction Documents and related documents on behalf of the Company and its Subsidiaries and (z) confirming that the representations and warranties of the Company contained herein are accurate in all material respects when made and on the applicable Closing Date; (vii) as to the First Closing, a certificate, evidencing a number of Shares equal to such Purchaser’s pro-rata portion of 2,000,000 shares of Common Stock (based on such Purchaser’s Subscription Amount hereunder and the aggregate Subscription Amount of all Purchasers hereunder), registered in the name of such Purchaser, it being understood that all 2,000,000 shares shall be issued at the First Closing; (viii) as to the Second Closing, the Mortgage, along with all of the other Security Documents, duly executed by the parties thereto and acknowledged where applicable; and (ix) as to the First Closing, the Subsidiary Guarantees, duly executed by the parties thereto and acknowledged where applicable. (b) On each Closing Date (except as noted), each Purchaser shall deliver or cause to be delivered to the Company the following: as to the First Closing, this Agreement duly executed by such Purchaser, ; and such Purchaser’s Subscription Amount for the Company shall deliver applicable Closing by wire transfer to each Purchaser its respective shares of Preferred Stock, the account as determined pursuant to Section 2.2(a), and specified in writing by the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second ClosingCompany.

Second Closing. Following The Second Closing shall occur at 10:00am (New York City time) on third (3rd) Business Day following the date on which all of the conditions set forth in Section 2.3 shall have been satisfied or, if applicable, waived by the party entitled to the benefit thereof, or at such other time and location as the parties shall mutually agree in writing; provided, that in the event that the parties do not hold the Second Closing on or prior to the date that is thirty (30) days after the First Closing Date and until January 6, 2017(the “Outside Date”), the Company may sell, on the same terms and conditions as those contained in this Agreement, an additional number of shares of Preferred Stock equal parties’ rights with regard to the Maximum Amount less Second Closing and the amount sold possible issuance of the Second Closing Shares by the Company to the Purchasers in at the Second Closing shall terminate and be of no further force or effect. The parties each agree to use their reasonable best efforts to cause the satisfaction of all the conditions required for the Second Closing to occur, and to consummate the Second Closing, as promptly as possible after the First Closing, to one or more Purchasers or such other purchasers as and in any case within fourteen (14) days after the Company and Purchasers otherwise agree in the manner set forth in Section 5.5 of this Agreement (each such other purchaser, an “Additional Purchaser”)First Closing Date; provided, however, that each Purchaser participating in the Initial Closing foregoing covenant shall have not change the right to purchase up to its pro-rata share (based on Outside Date. At the amounts of Preferred Stock that such Purchaser purchased at the First Closing) of the portion of such Second Closing. Each Additional Purchaser that subscribes , upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, the Second Closing Shares in exchange for payment by the Purchasers, severally and not jointly, of an aggregate amount equal to the Second Closing shall be required to become a party to this Agreement and the Registration Rights Agreement by executing and delivering a counterpart signature page thereto, and shall otherwise be deemed a “Purchaser” for purposes of this AgreementPurchase Price. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior to the Second Closing) of the occurrence of the Second Closing and, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such participation. On the Second Closing Date, each Purchaser shall deliver to the Company, via wire transfer or a certified check, immediately available funds equal to such Each Purchaser’s applicable Subscription Amount for the Second Closing as set forth on the signature page hereto executed by such PurchaserPurchaser shall be made available for “Delivery Versus Payment” settlement with the Company or its designee. At the Second Closing, and the Company shall deliver to each Purchaser its respective shares pro rata share of Preferred Stock, as determined pursuant the Second Closing Shares (based on such Purchaser’s applicable Subscription Amount relative to Section 2.2(athe aggregate Second Closing Purchase Price) (such Purchaser’s “Applicable Second Closing Shares”), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second Closing. Settlement of the Second Closing Shares shall occur via “Delivery Versus Payment” (“DVP”) (i.e., on the Second Closing Date, the Company shall issue the Applicable Second Closing Shares registered in each Purchaser’s name and address and released by the Transfer Agent directly to the account(s) identified by each Purchaser, and payment therefor shall be made by each Purchaser (by wire transfer to the Company)). All Second Closing Shares shall be delivered to the Purchasers hereunder free and clear of all Liens, other than restrictions on transferability arising under applicable federal securities laws.

Second Closing. Following On the First Second Closing Date Date, upon the terms and until January 6, 2017subject to the conditions set forth herein, the Company may agrees to sell, on and the same terms Purchasers, severally and conditions as those contained in this Agreementnot jointly, agree to purchase, an additional number aggregate of $3,500,000 of shares of Preferred Stock with an aggregate Stated Value for each Purchaser equal to the Maximum such Purchaser’s Subscription Amount less the amount sold to Purchasers in the First Closing, to one or more Purchasers or such other purchasers as the Company and Purchasers otherwise agree in the manner set forth in Section 5.5 of this Agreement (each such other purchaser, an “Additional Purchaser”); provided, however, that each Purchaser participating in the Initial Closing shall have the right to purchase up to its pro-rata share (based on the amounts of Preferred Stock that signature page hereto executed by such Purchaser purchased at the First Closing) of the portion of such Second ClosingPurchaser, as determined pursuant to Section 2.2(a). Each Additional Purchaser that subscribes to the The Second Closing shall be required to become a party to this Agreement occur on, or as soon as reasonably practicable following, and in any event within 5 Trading days of, the date on which the Registration Statement registering all of the Registrable Securities (as defined in the Registration Rights Agreement Agreement) is declared effective by executing and delivering a counterpart signature page thereto, and shall otherwise be deemed a the Commission (the “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior to the Second Closing) of the occurrence of the Second Closing and, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such participation”). On the Second Closing Date, each Purchaser shall deliver to the CompanyEscrow Agent, via wire transfer or a certified checktransfer, immediately available funds equal to such Purchaser’s Subscription Amount for the Second Closing as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective shares of Preferred Stock, Stock with an aggregate Stated Value for each Purchaser equal to such Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second Closing. In connection with the initial Registration Statement filed by the Company, upon receipt by the Company of notification (oral or written, whichever occurs earlier) from the Commission that such Registration Statement shall not be reviewed or shall not be subject to further review, the Company shall have promptly delivered written notice thereof to each Purchaser, which written notice (1) shall be delivered to the Purchasers contemporaneously with the Company’s filing with the Commission of a request of a request for acceleration in accordance with Rule 461 promulgated under the Securities Act and (2) shall include the proposed date of effectiveness of the Registration Statement, which shall not be later than 5 Trading Days following the delivery date of such notice to the Purchasers.

Second Closing. Following The completion of the First Closing Date purchase and until January 6sale of the Additional Shares and Additional Warrants (the “Second Closing”) shall occur at the offices of Pillsbury Winthrop LLP, 20170000 Xxxxxxx Xxxxxx, the Company may sellXxxx Xxxx, Xxxxxxxxxx 00000, at 8:00 A.M., San Francisco time, on the same terms and third business day following the date on which the last to be fulfilled or waived of the conditions as those contained in this Agreement, an additional number of shares of Preferred Stock equal to the Maximum Amount less the amount sold to Purchasers in the First Closing, to one or more Purchasers or such other purchasers as the Company and Purchasers otherwise agree in the manner set forth in Section 5.5 of this Agreement (each such other purchaser, an “Additional Purchaser”); provided, however, that each Purchaser participating in the Initial Closing shall have the right to purchase up to its pro-rata share (based on the amounts of Preferred Stock that such Purchaser purchased at the First Closing) of the portion of such Second Closing. Each Additional Purchaser that subscribes 5 and Section 6 pertaining to the Second Closing shall (other than those conditions that by their nature can only be required to become a party to this Agreement and the Registration Rights Agreement by executing and delivering a counterpart signature page thereto, and shall otherwise be deemed a “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with fulfilled at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior to the Second Closing) shall have been fulfilled or waived (by each of the occurrence parties hereto), or such other place and time to be specified by the Company, and of which the Investors will be notified not less than two (2) business days in advance by the Company. Subject to satisfaction or waiver of the conditions set forth in Section 5 and 6 hereof, at the Second Closing, the Investors identified on the Schedule of Investors as participants in the Second Closing (the “Second Closing Investors”) shall purchase the number of Additional Shares and Additional Warrants set forth opposite such Investors’ names on the Schedule of Investors. Funds shall be released to the Company from the Escrow on behalf of the Second Closing and, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such participation. On the Second Closing Date, each Purchaser shall deliver to the Company, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount Investors as payment for the Second Closing as set forth on the signature page hereto executed by such PurchaserAdditional Shares and Additional Warrants. Upon receipt of payment therefor, and the Company shall deliver to each Purchaser its respective shares Investor one or more stock certificates representing the number of Preferred Stock, as determined pursuant to Section 2.2(a)Additional Shares, and an Additional Warrant representing the Company and each Purchaser shall deliver the other items number of Warrant Shares, set forth opposite such Investor’s name on the Schedule of Investors, each such certificate and Additional Warrant to be registered in Section 2.2 deliverable at the name of the Investor or, if so indicated on the Stock Certificate and Warrant Questionnaire, in the name of a nominee designated by such Investor. The Initial Closing and the Second Closing are collectively referred to as the “Closing.”

Second Closing. Following i. The obligations of KiOR to sell the First Closing Date Shares, and until January 6of the Purchaser to purchase the Shares are subject to the fulfillment, 2017on or before the Second Closing, of each of the following conditions: (a) The notifications of Purchaser and KiOR pursuant to the HSR Act, if any, shall have been made and the applicable waiting period and any extensions thereof shall have expired or been terminated; 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 Shares are subject to the fulfillment, on or before the Second Closing, of each of the following conditions, unless otherwise waived by KiOR: (a) Purchaser shall pay to KiOR, by wire transfer of immediately available funds, the Company may sellamount set forth opposite such Purchaser’s name under the heading “Aggregate Purchase Price” on Exhibit A for the Shares being purchased at the Second Closing; and (b) each of the representations and warranties of Purchaser in this Agreement and the other Transaction Documents shall be true and correct on the date of the Second Closing, and the occurrence of such Second Closing shall be deemed to be a representation and warranty of Purchaser that such representations and warranties are true and correct. iii. The obligations of Purchaser to purchase the Shares are subject to the fulfillment, on or before the same terms and conditions as those contained in this Agreement, an additional number of shares of Preferred Stock equal to the Maximum Amount less the amount sold to Purchasers in the First Second Closing, to one or more Purchasers or such other purchasers as of each of the following conditions, unless otherwise waived by Purchaser: (a) the representations and warranties of the Company and Purchasers otherwise agree in the manner set forth in Section 5.5 4 of this Agreement shall be true and correct in all material respects (each except that such other purchaser, an materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality or “Additional Purchaser”); provided, however, that each Purchaser participating Material Adverse Effect” in the Initial Closing text thereof) on and as of the Second Closing; (b) 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 right Company on or before the Second Closing; (c) the Company shall have consummated, prior to purchase up to its pro-rata share (based on the amounts of Preferred Stock that such Purchaser purchased at the First Closing) end of the portion Commitment Period, the Financing Event; (d) the Chief Executive Officer of such Second Closing. Each Additional Chief Financial Officer of KiOR shall deliver to Purchaser that subscribes to at the Second Closing a certificate certifying that the conditions specified in clauses (a) (b) and (c) have been fulfilled; (e) KiOR shall be required have received all consents, authorizations or approvals referred to become a party in Schedule 4.3, in form and substance reasonably satisfactory to this Agreement KiOR and the Registration Rights Agreement by executing and delivering a counterpart signature page thereto, and shall otherwise be deemed a “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior to the Second Closing) of the occurrence of the Second Closing and, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such participation. On the Second Closing Date, each Purchaser shall deliver to the Company, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount for the Second Closing as set forth on the signature page hereto executed by such Purchaser, and no such consent, authorization or approval shall have been revoked; and (f) the Company shall deliver have provided Purchaser with evidence of the filing of Listing of Additional Shares Notification Form with NASDAQ with respect to each Purchaser its respective the shares of Preferred Stock, as determined pursuant Class A Common Stock to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable be issued at the Second Closing.

Second Closing. Following Subject to the First satisfaction (or waiver) of the conditions set forth in Sections 6 and 7 below, in consideration for the payment of each Buyer’s payment of its pro rata share of the Second Purchase Price (as defined below) (i) the Company shall issue and sell to each Buyer, and each Buyer agrees to purchase from the Company on the Second Closing Date and until January 6, 2017(as defined below), the Company may sellDebenture in the principal amount set forth opposite such Buyer’s name in column (5) on the Schedule of Buyers. The closing (the “Second Closing”) of the purchase of the Securities by the Buyers shall occur at the offices of MxXxxxxxx Will & Exxxx LLP, 300 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The date and time of the Second Closing (the “Second Closing Date”) shall be 10:00 a.m., New York City time, on the same terms and date hereof, subject to notification of satisfaction (or waiver) of the conditions as those contained in this Agreement, an additional number of shares of Preferred Stock equal to the Maximum Amount less the amount sold to Purchasers in the First Closing, to one or more Purchasers or such other purchasers as the Company and Purchasers otherwise agree in the manner Second Closing set forth in Section 5.5 of this Agreement Sections 6 and 7 below (each or such other purchaserlater date as is mutually agreed to by the Company, an Parent and the Buyers). The aggregate purchase price (the “Additional PurchaserSecond Purchase Price”); provided, however, that each Purchaser participating in the Initial Closing shall have the right to purchase up to its pro-rata share (based on the amounts of Preferred Stock that such Purchaser purchased at the First Closing) of the portion of such Second Closing. Each Additional Purchaser that subscribes Debentures to be purchased by the Buyers at the Second Closing shall be required equal to become a party to this Agreement and the Registration Rights Agreement by executing and delivering a counterpart signature page thereto, and shall otherwise be deemed a “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior to the Second Closing) of the occurrence of the Second Closing and, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such participation$3,000,000. On the Second Closing Date, (i) each Purchaser Buyer shall deliver pay its pro rata share of the Second Purchase Price to the CompanyCompany for the Debenture to be issued and sold to such Buyer at the Second Closing, via by wire transfer or a certified check, of immediately available funds equal to such Purchaserin accordance with Company’s Subscription Amount for the Second Closing as set forth on the signature page hereto executed by such Purchaserwritten wire instructions, and (ii) the Company shall deliver to each Purchaser its respective shares the Buyers the Debenture which such Buyer is then purchasing, duly executed on behalf of Preferred Stock, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver registered in the other items set forth in Section 2.2 deliverable at the Second Closingname of such Buyer or its designee.

Second Closing. Following The closing of the First Closing Date sale and until January 6, 2017, purchase of up to the Company may sell, on the same terms and conditions as those contained in this Agreement, an additional total number of shares of Preferred Stock equal to Shares set forth under the Maximum Amount less heading "Second Closing" on Exhibit A (the amount sold to Purchasers in "Second Closing," the First Closing, the Subsequent First Closing and the Second Closing are sometimes referred to one or more Purchasers or such other purchasers herein collectively as the Company and Purchasers otherwise agree in "Closing") shall take place at the manner offices of Xxxxxx Godward LLP (as set forth in Section 5.5 of this Agreement (each such other purchaser, an “Additional Purchaser”); provided, however, that each Purchaser participating in the Initial Closing shall have the right to purchase up to its pro-rata share (based on the amounts of Preferred Stock that such Purchaser purchased at above) not later than 120 days following the First Closing) . The specific time and place of the portion of such Second Closing. Each Additional Purchaser that subscribes to the Second Closing shall be required agreed in writing among the Company and a majority in interest of the Purchasers by not later than 90 days following the First Closing (such date is hereinafter referred to as the "Second Closing Date"), but if no such agreement occurs, then such Second Closing shall occur 120 days after the First Closing (if such date is not a business day (defined as any weekday other than a United States of America or California holiday) then such Second Closing shall be on the first immediately following business day.). In connection with each Purchaser's consent to the date of the Second Closing, each such Purchaser shall indicate the portion of the Shares set forth opposite such Purchaser's name under the heading "Second Closing" on Exhibit A that it intends to purchase at said Second Closing and shall submit payment for the Shares that it intends to purchase by not later than 15 days prior to the scheduled date of the Second Closing (the "Second Closing Payment Deadline"). If (a) a Purchaser indicates that it intends to purchase fewer than the full number of Shares set forth opposite such Purchaser's name under the heading "Second Closing" on Exhibit A, then it shall forfeit its right to purchase all other Shares listed for its purchase at the Second Closing (the "Forfeited Shares") or (b) a Purchaser fails to deliver payment for the Shares that it intends to purchase at the Second Closing by the Second Closing Payment Deadline, then said Purchaser shall be deemed to have forfeited its right to purchase all Shares for which it has not paid (also the "Forfeited Shares"). Upon such forfeiture, Oryx may itself purchase, or it may select one or more third parties that are reasonably acceptable to the Board of Directors of the Company to purchase, any or all of such Forfeited Shares at the Second Closing. All such sales of the Forfeited Shares shall be made on the terms and conditions set forth in this Agreement as they apply to the Second Closing. Any third party participating in such Second Closing shall become a party to this Agreement and the Registration Rights Agreement by executing and delivering a counterpart signature page thereto, to this Agreement and shall otherwise thereafter be deemed a “"Purchaser” for purposes " and a party hereunder and such person shall also be required to execute all other documents required of this AgreementPurchasers in a Closing. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior to At the Second Closing) of the occurrence of the Second Closing and, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice will undertake to update the attached Exhibit A to reflect the actual identities of such participation. On the Second Closing Date, each Purchaser shall deliver to the Company, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount for the Second Closing as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to respective amounts purchased at each Purchaser its respective shares of Preferred Stock, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second Closing.

Second Closing. Following Beginning on the 50th day following the First Closing Date and until January 6, 2017the 60th day following the First Closing Date (the “Second Closing Option Period”), the Company may sellsell and the Purchasers shall be required, severally and not jointly, to purchase up to an aggregate of $250,000 of shares of Preferred Stock with an aggregate Stated Value for each Purchaser equal to such Purchaser’s applicable Subscription Amount for the Second Closing as set forth on the same terms signature page hereto executed by such Purchaser (such closing of the sale of such Preferred Stock, the “Second Closing” and conditions as those contained in this Agreementthe date of such Second Closing, an additional the “Second Closing Date”). The aggregate number of shares of Preferred Stock equal to the Maximum Amount less the amount sold to Purchasers in the First Closing, to one or more Purchasers or such other purchasers as the Company and Purchasers otherwise agree in the manner set forth in Section 5.5 of this Agreement (each such other purchaser, an “Additional Purchaser”); provided, however, that each Purchaser participating in the Initial Closing hereunder shall have the right to purchase be up to its pro-rata share (based on the amounts of Preferred Stock that such Purchaser purchased at the First Closing) of the portion of such Second Closing. Each Additional Purchaser that subscribes to the Second Closing shall be required to become a party to this Agreement and the Registration Rights Agreement by executing and delivering a counterpart signature page thereto, and shall otherwise be deemed a “Purchaser” for purposes of this Agreement250. The Company shall provide written notice to the Purchasers with at least 2 Trading Days’ prior notice Days (but not to exceed 3 earlier than three Trading Days prior to the Second Closing) of its election to sell the occurrence of applicable Preferred Stock at the Second Closing and, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such participationClosing. On the Second Closing Date, each Each Purchaser shall deliver to the Company, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s applicable Subscription Amount for the Second Closing as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective shares of Preferred StockStock and Warrants, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Second Closing shall occur at the offices of Company Counsel or such other location as the parties shall mutually agree. Notwithstanding the foregoing, in the event that the Company does not provide written notice to the Purchasers during the Second Closing Option Period that it has elected to sell the applicable Preferred Stock at the Second Closing, the Company shall have deemed to have waived its right to sell such Preferred Stock.

Second Closing. Following (a) On the First Closing Date and until January 6, 2017, the Company may sell, on the same terms and conditions as those contained in of this Agreement, an additional number the closing of shares of Preferred Stock equal the Supplemental Purchase, if any, (the “Second Closing”) shall occur at 10:00 a.m. (New York City time) on June 29, 2020, subject to the Maximum Amount less the amount sold to Purchasers in the First Closing, to one or more Purchasers or such other purchasers as the Company and Purchasers otherwise agree in the manner set forth in Section 5.5 of this Agreement (each such other purchaser, an “Additional Purchaser”); provided, however, that each Purchaser participating in the Initial Closing shall have the right to purchase up to its pro-rata share (based on the amounts of Preferred Stock that such Purchaser purchased at the First Closing) of the portion of such Second Closing. Each Additional Purchaser that subscribes conditions to the Second Closing set forth in Article VI of this Agreement being satisfied or, to the extent permitted by applicable Law, waived by the party entitled to the benefit thereof, at such time, and shall be conducted remotely via the electronic exchange of documents and signatures, or at such other place, time and date as shall be agreed between the Company and the Investor; provided that notwithstanding anything to the contrary herein, the Investor shall not be required to become a party effect the Second Closing after the Outside Date (the date on which the Second Closing occurs, the “Second Closing Date”). (b) At the Second Closing: (i) the Company shall deliver to this Agreement the Investor or its designee (A) any Supplemental Acquired Shares, free and clear of all Liens, except restrictions imposed by the Certificate of Designations, the Securities Act, Section 5.08 and any applicable securities Laws and evidence of the issuance of the Supplemental Acquired Shares to the Investor credited to book-entry accounts maintained by the transfer agent of the Company and (B) if the number of Supplemental Acquired Shares is greater than 20,000, the Registration Rights Agreement Agreement, duly executed by executing and delivering a counterpart signature page theretothe Company; and (ii) the Investor shall, and or shall otherwise be deemed a “Purchaser” for purposes cause one or more of this Agreement. The its designees to, (A) pay to the Company, by wire transfer of immediately available U.S. federal funds, to the account designated by the Company shall provide Purchasers with in writing at least 2 Trading Days’ prior notice two (but not to exceed 3 Trading 2) Business Days prior to the Second ClosingClosing Date an amount in cash equal to the product of (1) the Supplemental Per Share Purchase Price and (2) the number of Supplemental Acquired Shares (the occurrence of “Supplemental Purchase Price” and together with the Initial Purchase Price the “Aggregate Purchase Price”) plus the Second Closing andExpense Reimbursement Amount, and (B) if a Purchaser wants to participatethe number of Supplemental Acquired Shares is greater than 20,000, it will provide the Company with at least one Trading Day notice of such participation. On the Second Closing Date, each Purchaser shall deliver to the CompanyCompany the Registration Rights Agreement, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount for the Second Closing as set forth on the signature page hereto duly executed by such Purchaser, and the Company shall deliver to each Purchaser its respective shares of Preferred Stock, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second ClosingInvestor.

Second Closing. Following Upon and subject to the First Closing Date and until January 6, 2017, the Company may sell, on the same terms and conditions as those contained in of this Agreement, an additional number of shares of Preferred Stock equal to at the Maximum Amount less the amount sold to Purchasers in the First Second Closing, Sellers shall sell, transfer, assign and deliver to one or more Purchasers or such other purchasers as the Company Purchaser, and Purchasers otherwise agree Purchaser shall purchase, acquire and accept from Sellers, all of Sellers' right, title and interest in the manner set forth in Section 5.5 of this Agreement (each such other purchaser, an “Additional Purchaser”); provided, however, that each Purchaser participating in and to all the Initial Closing shall Assets identified in Schedule 2.1(b)(ii) that meet the Conditions Precedent as of the Second Closing, free and clear of all Liens other than Permitted Liens. Notwithstanding the foregoing, if, at the time of the Second Closing, there is an Open Title Condition with respect to any Initial Assets identified in Schedule 2.1(b)(ii) and such failure would have the right to purchase up to its pro-rata share (based on effect of reducing the amounts of Preferred Stock that TCF Product payable for such Purchaser purchased Initial Assets at the First Closing) of Second Closing below the portion of such Second Closing. Each Additional Purchaser that subscribes Closing Amount, but all the Conditions Precedent to the Second Closing other than the Title Condition are met with respect to such Initial Assets, then (i) Sellers shall be required sell, transfer, assign and deliver to become a party to this Agreement and the Registration Rights Agreement by executing and delivering a counterpart signature page theretoPurchaser, and Purchaser shall otherwise be deemed a “Purchaser” purchase, acquire and accept from Sellers, all of Sellers' right, title and interest in and to such Initial Assets identified in Schedule 2.1(b)(ii) with respect to which the Title Condition is satisfied, and (ii) such Open Title Assets will become Managed Assets pursuant to the Management Agreement so that the aggregate TCF Product for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior to the Second Closing) of the occurrence of , with respect to such Initial Assets to be transferred and such Managed Assets, shall be not less than the Second Closing andAmount. For the avoidance of doubt, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such participation. On the Second Closing Date, each Purchaser shall deliver to the Company, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount for the Second Closing as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective shares of Preferred Stock, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second Closing, Schedule 2.1(b)(ii) shall identify and Sellers shall deliver to Purchaser, Initial Assets and deliver to Purchaser Managed Assets to be managed under the Management Agreement that generate, in the aggregate, TCF Product in amount not less than the Second Closing Amount.

Second Closing. Following (i) Subject to and in reliance upon the First Closing Date representations and until January 6, 2017, the Company may sell, on the same terms and conditions as those contained in this Agreement, an additional number of shares of Preferred Stock equal to the Maximum Amount less the amount sold to Purchasers in the First Closing, to one or more Purchasers or such other purchasers as the Company and Purchasers otherwise agree in the manner warranties set forth in Section 5.5 of this Agreement 3 below, and the satisfaction (each such other purchaser, an “Additional Purchaser”); provided, however, that each Purchaser participating in the Initial Closing shall have the right to purchase up to its pro-rata share (based on the amounts of Preferred Stock that such Purchaser purchased at the First Closingor waiver) of the portion conditions set forth in Sections 6 and 7 below, (i) the Company shall issue and sell to each Buyer, and each Buyer severally, but not jointly, agrees to purchase from the Company on the Second Closing Date (as defined below), a principal amount of Debentures as is set forth opposite such Buyer’s name in column (5) on the Schedule of Buyers and (ii) the Company shall deliver or cause to be delivered to each Buyer on the Second ClosingClosing Date the number of Closing Securities as is set forth opposite such Buyer’s name in column (6) on the Schedule of Buyers. Each Additional Purchaser that subscribes The aggregate purchase price (the “Second Purchase Price”) of the of the Debentures and Closing Securities to be purchased by the Buyers at the Second Closing shall be required equal to become a party to this Agreement and the Registration Rights Agreement by executing and delivering a counterpart signature page thereto, and shall otherwise be deemed a “Purchaser” for purposes of this Agreement$2,700,000. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice closing (but not to exceed 3 Trading Days prior to the “Second Closing”) of the occurrence purchase of the Debentures and the Closing Securities by the Buyers shall occur at the offices of XxXxxxxxx Will & Xxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The date and time of the Closing (the “Second Closing andDate”) shall be 10:00 a.m., if a Purchaser wants to participateNew York City Time, it will provide the Company with at least one Trading Day notice of such participation. on or before June 8, 2007. (ii) On the Second Closing Date, (i) each Purchaser Buyer shall deliver pay its aggregate Second Purchase Price to the CompanyCompany for the Debentures and Closing Securities to be issued and sold to such Buyer at the Second Closing, via by wire transfer or a certified check, of immediately available funds equal to such Purchaserin accordance with Company’s Subscription Amount for the Second Closing as set forth on the signature page hereto executed by such Purchaserwritten wire instructions, and (ii) the Company shall deliver to each Purchaser its respective shares Buyer (A) the Debentures (in the denominations as such Buyer shall have requested prior to the Closing) which such Buyer is then purchasing, duly executed on behalf of Preferred Stock, as determined pursuant to Section 2.2(a), and the Company and each Purchaser registered in the name of such Buyer or its designee and (B) the Closing Securities (in the denominations as such Buyer shall deliver have requested prior to the other items set forth Closing) which such Buyer is then purchasing, duly executed on behalf of the Parent and registered in Section 2.2 deliverable at the Second Closingname of such Buyer or its designee.

Second Closing. Following Notwithstanding anything to the First Closing Date and until January 6, 2017, contrary contained in the Company may sell, on the same terms and conditions as those contained Exchange Agreement or in this Agreement: (a) the closing of the transfer, conveyance and assignment of the Retained Interests and the Additional Xxxxx (as defined below) shall occur at the earlier to occur of (such closing, the “Second Closing,” and such earlier date, the “Second Closing Date”) (i) the closing (such closing, the “XxXxxxx Closing”) of the acquisition by DRI or any of its Affiliates of a real property interest (such interest, the “XxXxxxx Interest”) in ExxonMobil’s (or its Affiliate’s) carbon dioxide assets relative to the LaBarge Madison development reserve located in XxXxxxx, Wyoming or (ii) December 21, 2012; provided, that, for the avoidance of doubt, the Effective Time shall be 7:00 a.m. local time where the DRI Assets and the Additional Xxxxx are located on July 1, 2012; (b) the obligations of ExxonMobil to consummate the Second Closing are subject to the fulfillment by DRI or waiver by ExxonMobil on or prior to the Second Closing Date of each of the following conditions: (i) DRI shall have executed, acknowledged and delivered (or be ready, willing and able to deliver at the Second Closing) to ExxonMobil, the Assignment, Xxxx of Sale and Conveyance, in substantially the form of the Assignment, Xxxx of Sale and Conveyance delivered by DRI to XTO and ExxonMobil as of the date hereof (but deleting the concepts regarding the assignment of an additional number undivided 50% of shares DRI’s interest to XTO Energy and the retention by DRI of Preferred Stock an undivided 17.5% of DRI’s interest) (the “Second Closing Assignment”), dated as of the Second Closing Date, which will convey to ExxonMobil title to the Retained Interests and all of DRI’s right, title and interest in and to the xxxxx listed on Schedule A (the “Additional Xxxxx”); (ii) DRI shall provide to ExxonMobil a list showing the value of all net proceeds from production attributable to the Retained Interests and Additional Xxxxx that are held in suspense as of the Second Closing in accordance with Section 12.12 of the Exchange Agreement (substituting the term “Retained Interests and Additional Xxxxx” for “Assets” and the term “Second Closing” for “Closing” throughout Section 12.12 of the Exchange Agreement); and (iii) no order, award or judgment shall have been issued by any Governmental Authority or arbitrator to restrain, prohibit, enjoin or declare illegal, or awarding substantial damages in connection with, the consummation of the Second Closing; (c) the obligations of DRI to consummate the Second Closing are subject to the fulfillment by ExxonMobil or waiver by DRI on or prior to the Second Closing Date of each of the following conditions: (i) ExxonMobil shall pay to DRI or its designee an amount (such amount, the “Second Closing Consideration Amount”) in cash equal to (X) $350,000,000 (the Maximum Amount less “Second Closing Additional Consideration”) plus (Y) the aggregate amount sold of the Upward Adjustments attributable to Purchasers the Retained Interests and the Additional Xxxxx minus (Z) the aggregate amount of the Downward Adjustments attributable to the Retained Interests and the Additional Xxxxx, in the First Closingcase of both (Y) and (Z) in accordance with Section 3.1 of the Exchange Agreement (substituting the term “Retained Interests and Additional Xxxxx” for “Assets” throughout Section 3.1 of the Exchange Agreement, and with each component of the Upward Adjustments and Downward Adjustments (other than those related to one or more Purchasers or such other purchasers as Title Benefits, Title Defects and Environmental Defects, which treatment is clarified in Section 3.6 and 3.7 hereof) and the Company defined terms contained in and Purchasers otherwise agree sections referenced in Section 3.1 of the Exchange Agreement being deemed to refer to the Retained Interests and Additional Xxxxx that are being transferred in the manner set forth in Section 5.5 of this Agreement (each such other purchaser, an “Additional Purchaser”Second Closing); provided, however, that each Purchaser participating in if the Initial XxXxxxx Closing shall have the right to purchase up to its pro-rata share (based on the amounts of Preferred Stock that such Purchaser purchased at the First Closing) of the portion of such Second Closing. Each Additional Purchaser that subscribes to the Second Closing shall be required to become a party to this Agreement and the Registration Rights Agreement by executing and delivering a counterpart signature page theretohas occurred as of, and shall otherwise be deemed a “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior to the Second Closing) of the occurrence of the Second Closing andor is occurring simultaneously with, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such participation. On the Second Closing Date, each Purchaser ExxonMobil shall deliver transfer, assign and convey to DRI the CompanyXxXxxxx Interest, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount for and (1) in the event the Second Closing Consideration Amount is greater than the value of the XxXxxxx Interest (as set forth on the signature page hereto executed agreed to by such Purchaser, DRI and the Company shall deliver to each Purchaser its respective shares of Preferred Stock, as determined pursuant to Section 2.2(aExxonMobil), ExxonMobil shall pay the amount of such difference to DRI in cash at the Second Closing or (2) in the event the Second Closing Consideration Amount is less than the value of the XxXxxxx Interest (as agreed to by DRI and ExxonMobil), DRI shall pay the Company and each Purchaser shall deliver the other items set forth amount of such difference to ExxonMobil in Section 2.2 deliverable cash at the Second Closing.; (ii) ExxonMobil shall have executed, acknowledged and delivered (or be ready, willing and able to deliver at the Second Closing) to DRI, a counterpart to the Second Closing Assignment; and (iii) no order, award or judgment shall have been issued by any Governmental Authority or arbitrator to restrain, prohibit, enjoin or declare illegal, or awarding substantial damages in connection with, the consummation of the Second Closing; (d) in connection with the Second Closing, no later than five (5) business days (as defined in the Exchange Agreement) before the Second Closing Date, DRI shall prepare, in accordance with the Exchange Agreement and this Agreement, an Estimated Settlement Statement setting forth each adjustment to the Second Closing Additional Consideration for purposes of determining the Second Closing Consideration Amount in accordance with this Article II and Section 3.1 of the Exchange Agreement (substituting the term “Retained Interests and Additional Xxxxx” for “Assets” throughout Section 3.1 of the Exchange Agreement); (e) until the Second Closing, with regard to all the Retained Interests and the Additional Xxxxx, DRI shall in all cases vote and make elections in accordance with the instructions of XTO; (f) although Section 4.14, Section 7.1, Article XII and Section 16.13 of the Exchange Agreement refer to the Assets and the Closing, such provisions shall be deemed to apply (1) with respect to the Assets transferred by a Transferring Party to an Acquiring Party at the Closing, to the Assets assigned at the Closing and (2) with respect to the Retained Interests and Additional Xxxxx to be transferred by DRI to ExxonMobil at the Second Closing, to the Retained Interests and Additional Xxxxx assigned at the Second Closing; and (g) the following provisions of the Exchange Agreement shall be amended as follows: (i) Section 3.4 of the Exchange Agreement shall be amended by replacing the term “Closing Date” with the term “Second Closing Date” in the first sentence thereof; (ii) Section 4.5 of the Exchange Agreement shall be amended by replacing the term “Closing” with the term “Second Closing” in the first sentence thereof; (iii) Section 12.11A of the Exchange Agreement shall be amended by replacing the term “Closing Date” with the term “Second Closing Date” throughout Section 12.11A; and (iv) the following defined terms with the following meanings shall be added to Annex A to the Exchange Agreement:

Second Closing. Following A. Notwithstanding anything to the First Closing Date and until January 6, 2017contrary set forth in the LLC Agreement, the Company may sellTransaction Agreement or otherwise, on but subject to (i) the same terms and prior satisfaction (or waiver by MSI or MHR, as applicable, in writing in its sole discretion) of each of the conditions as those contained in this Agreement, an additional number of shares of Preferred Stock equal to the Maximum Amount less the amount sold to Purchasers in the First Closing, to one or more Purchasers or such other purchasers as the Company and Purchasers otherwise agree in the manner set forth in Section 5.5 3.3 of the Transaction Agreement, (ii) the prior satisfaction (or waiver by MSI in writing in its sole discretion) of the Debt Condition and (iii) the consummation of each of the MSI November Contribution, the MHR November Contribution and the Interim Closing (provided, that, MSI shall have the right in its sole discretion to waive the condition that the MHR November Contribution or Interim Closing shall have occurred if the MHR November Contribution or the Interim Closing does not occur due to any breach by MHR or the Company of any Transaction Document or Related Document, and MHR shall have the right in its sole discretion to waive the condition that the MSI November Contribution or the Interim Closing shall have occurred if the MSI November Contribution or the Interim Closing does not occur due to any breach by MSI of any Transaction Document or Related Document), on or about December 15, 2014, but in no event later than December 19, 2014 (a) MSI shall purchase and acquire from MHR, and MHR shall assign, transfer and convey to MSI, 1,505,374 Class A Common Units (the “MHR Acquired Units”) and such Class A Common Units shall be converted automatically for all purposes into 1,505,374 Series A-2 Units in accordance with the LLC Agreement and (b) MSI shall pay to MHR an aggregate amount equal to $55,000,000 for the MHR Acquired Units, which $55,000,000 shall be the “MHR Purchase Price” (as defined in the Transaction Agreement). Except as set forth in this Section 4A, MSI has no obligation under the Transaction Agreement or otherwise to purchase from MHR any Class A Common Units or other Units or pay any consideration to MHR for the MHR Acquired Units. After giving effect to the MSI November Contribution, the MHR November Contribution, the Interim Closing, the Second Closing (each such other purchaserwhich, an “Additional Purchaser”)for the avoidance of doubt, shall be deemed to be the transactions contemplated by this Section 4A) and the Adjustment Amendment, MSI (together with any of its Affiliated Members or Permitted Transferees) shall own 49.84% of the Class A Common Units and MHR (together with any of its Affiliated Members or Permitted Transferees) shall own 48.60% of the Class A Common Units and the Members’ Schedule is as provided in the applicable column of Schedule I hereto; provided, however, that each Purchaser participating if either MHR or MSI makes any disproportionate Capital Contribution during the Interim Period in accordance with the LLC Agreement (other than the MSI November Contribution, MHR November Contribution and/or MSI Interim Closing Contribution), then the 49.84% and 48.60% ownership percentages referred to above shall be adjusted in accordance with the LLC Agreement. B. This letter agreement hereby amends Section 5.3(c) and Section 5.5 of the LLC Agreement as follows: (i) the reference to $40 million in the proviso at the end of Section 5.5 is hereby replaced with $60 million and (ii) the MHR Catch-Up Period shall expire on the earlier of (x) one (1) year following the applicable CapEx Contribution Closing Date and (y) the MLP IPO. For the avoidance of doubt, MHR shall be entitled to make a MHR Catch-Up Contribution in respect of the MSI November Contribution, but MHR shall not be entitled to make a MHR Catch-Up Contribution in respect of the MSI Interim Closing Contribution. C. The parties hereby amend the Transaction Agreement and LLC Agreement, effective as of the Initial Closing shall have (as that term is defined in the right Transaction Agreement (i.e., October 3, 2014)), to purchase up to its pro-rata share (based on the amounts reflect a decrease in MHR’s Capital Account of Preferred Stock that such Purchaser purchased at the First Closing) $43,300,000 and a decrease in MHR’s Series A-1 Units of 1,227,182. The Book Value of the portion of such Second Closing. Each Additional Purchaser that subscribes to the Second Closing shall be required to become a party to this Agreement Company’s Property and the Registration Rights Agreement by executing and delivering a counterpart signature page thereto, and other Members’ Capital Accounts shall otherwise not be deemed a “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers adjusted in connection with at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior to the Second Closing) of changes provided in the occurrence of the Second Closing and, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such participation. On the Second Closing Date, each Purchaser shall deliver to the Company, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount for the Second Closing as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective shares of Preferred Stock, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second Closingpreceding sentence.

Second Closing. Following the First Closing Date and until January 6, 2017, (i) The obligations of the Company may sell, on the same terms and conditions as those contained hereunder in this Agreement, an additional number of shares of Preferred Stock equal to the Maximum Amount less the amount sold to Purchasers in the First Closing, to one or more Purchasers or such other purchasers as the Company and Purchasers otherwise agree in the manner set forth in Section 5.5 of this Agreement (each such other purchaser, an “Additional Purchaser”); provided, however, that each Purchaser participating in the Initial Closing shall have the right to purchase up to its pro-rata share (based on the amounts of Preferred Stock that such Purchaser purchased at the First Closing) of the portion of such Second Closing. Each Additional Purchaser that subscribes to connection with the Second Closing shall be required to become a party to this Agreement and the Registration Rights Agreement by executing and delivering a counterpart signature page thereto, and shall otherwise be deemed a “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior are subject to the Second Closingfollowing conditions being met: (A) of the occurrence of accuracy in all material respects on the Second Closing and, if Date of the representations and warranties of the Purchasers contained herein (unless as of a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice specific date therein in which case they shall be accurate as of such participation. On the date); (B) all obligations, covenants and agreements of each Purchaser required to be performed at or prior to Second Closing Date, Date shall have been performed; and (C) the delivery by each Purchaser shall deliver to of the Company, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount for the Second Closing as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective shares of Preferred Stock, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable 2.2(b)(ii) of this Agreement. (ii) The respective obligations of the Purchasers hereunder in connection with the Second Closing are subject to the following conditions being met: (A) the accuracy in all material respects on the Second Closing Date of the representations and warranties of the Company contained herein (unless as of a specific date therein in which case they shall be accurate as of such date); (B) all obligations, covenants and agreements of the Company required to be performed at or prior to the Second Closing Date shall have been performed; (C) there shall have been no Material Adverse Effect with respect to the Company since the Initial Closing Date; (D) a UCC-1 financing statement shall have been filed by the Company with the appropriate division of the Secretary of State of Delaware with respect to the Purchaser’s security interest under the Security Agreement; (E) all Existing Noteholders shall have terminated the Existing Security Agreement (and their security interest in the Company assets), and filed a UCC-3 termination statement; (F) the Company shall have received all necessary third-party consents to consummate the Second Closing, copies of which shall have been delivered to the Purchasers; (G) the delivery by the Company of the items set forth in Section 2.2(b)(i) of this Agreement; (H) all Members of the Company shall have signed the Operating Agreement Amendment; and (I) the delivery by the Company of its audited financial statements as of the year ended December 31, 2016 and its unaudited financial statements as of the quarter ended March 31, 2017.

Second Closing. Following So long as there has not been a Qualified Financing, Change in Control or Initial Public Offering (each as defined below) on or before December 31, 2014, or in the First event that the Notes issued in the Initial Closing Date have not previously been converted pursuant to Section 3 below, upon: (i) providing advance notice to all Purchasers; and until January 6, 2017(ii) subject to the satisfaction or waiver of the conditions set forth in Section 6 hereof, the Company may sellwill issue and sell to the Purchasers, severally and not jointly, and each Purchaser agrees, severally and not jointly, to purchase from the Company, Notes in such principal amounts as is set forth under the heading “Second Closing Note Amount” on the Schedule of Purchasers attached as Exhibit A hereto (the “Second Closing”); provided, however, in the event that the Notes issued in the Initial Closing will be converted pursuant to Section 3.2 or 3.3 and the Second Closing has not yet occurred, the Company shall provide each Purchaser with twenty (20) days notice prior to the consummation of the Change of Control or Initial Public Offering, as applicable. The Second Closing shall be held at Xxxxx Lovells at a time and date specified by the Company or at such other time and place as the Company and the Purchasers having agreed to purchase a majority of the principal amount of the Notes at the Second Closing mutually agree upon, orally or in writing; provided, that in the event the Company has provided the Purchasers with notice of the consummation of a Change of Control or Initial Public Offering, as applicable, the Second Closing shall occur no later than ten (10) days prior to the consummation of the Change of Control or Initial Public Offering, as applicable. The Initial Closing and the Second Closing are each referred to herein as a “Closing.” Any sale of Notes at a Closing shall be upon the same terms and conditions as those contained in this Agreementherein; and such persons or entities, an additional number of shares of Preferred Stock equal to the Maximum Amount less the amount sold to Purchasers in the First Closing, to one or more Purchasers or such other purchasers as the Company and Purchasers otherwise agree in the manner set forth in Section 5.5 of this Agreement (each such other purchaser, an “Additional Purchaser”); provided, however, that each Purchaser participating in the Initial Closing shall have the right to purchase up to its pro-rata share (based on the amounts of Preferred Stock that such Purchaser purchased at the First Closing) by delivery of the portion of such Second Closing. Each Additional Purchaser that subscribes to the Second Closing appropriate executed signature pages, shall be required to become a party parties to this Agreement and shall have the Registration Rights Agreement by executing rights and delivering a counterpart signature page thereto, and shall otherwise be deemed a “Purchaser” for purposes obligations of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior to the Second Closing) of the occurrence of the Second Closing and, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such participation. On the Second Closing Date, each Purchaser shall deliver to the Company, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount for the Second Closing as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective shares of Preferred Stock, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second Closinghereunder.

Second Closing. Following (a) On the First Closing Date and until January 6, 2017, the Company may sell, on the same terms and conditions as those contained in of this Agreement, an additional number closing of shares of Preferred Stock equal to the Maximum Amount less Purchase (the amount sold to Purchasers in the First “Second Closing”) shall occur at 10:00 a.m. (New York City time) on July 31, to one 2020 or more Purchasers or at such other purchasers place, time and date as shall be agreed between the Company and Purchasers otherwise the Investor (the “Second Closing Date”) and shall be conducted remotely via the electronic exchange of documents and signatures, provided that the conditions to the Second Closing set forth in Article VI of this Agreement shall have been satisfied or, to the extent permitted by applicable Law, waived by the party entitled to the benefit thereof prior to such date (other than those conditions that by their nature are to be satisfied at the Second Closing, but subject to the satisfaction or waiver of those conditions at such time).” 2. The reference in Section 5.21(d) of the Investment Agreement to “the Initial Closing” shall be replaced with “the Second Closing”. 3. The parties hereto hereby agree in that (i) the manner condition set forth in Section 5.5 of this Agreement (each such other purchaser, an “Additional Purchaser”); provided, however, that each Purchaser participating in the Initial Closing shall have the right to purchase up to its pro-rata share (based on the amounts of Preferred Stock that such Purchaser purchased at the First Closing6.04(a) of the portion Investment Agreement was satisfied as of such Second Closing. Each Additional Purchaser that subscribes the execution of the valid and binding purchase and sale agreement in respect of the Wella Sale by and among the Company, Coty International Holding, B.V. and Rainbow UK Bidco Limited on June 1, 2020 and (ii) for the avoidance of doubt, for all purposes (including the Conversion Rate and the Dividend Rate (each as defined in the Certificate of Designations)) under the Certificate of Designations of Series B Convertible Preferred Stock, Par Value $0.01, of the Company, as filed by the Company with the Secretary of State of the State of Delaware on May 26, 2020 (the “Certificate of Designations”), the Wella Condition (as defined in the Certificate of Designations) was satisfied on or prior to the Second Closing Step-up Date (as defined in the Certificate of Designations). 4. The reference in Section 7.01(b) to “July 31, 2020” shall be required replaced with “August 3, 2020”. 5. From and after the date of this Amendment No. 1, references in the Investment Agreement to become a party the “Agreement” shall be deemed to this refer to the Investment Agreement and as amended hereby unless the Registration Rights Agreement by executing and delivering a counterpart signature page theretocontext otherwise requires, and shall otherwise be deemed a references in the Investment Agreement to the “Purchaserdate hereof” for purposes or the “date of this Agreement” shall be deemed to refer to May 11, 2020. 6. The Company Except as otherwise expressly provided herein, all of the terms and conditions of the Investment Agreement remain unchanged and continue in full force and effect. This Amendment No. 1 is limited precisely as written and shall provide Purchasers with at least 2 Trading Days’ prior notice not be deemed to be an amendment to any other term or condition of the Investment Agreement or any of the documents referred to therein. This Amendment No. 1 shall be deemed to be in full force and effect from and after the execution of this Amendment No. 1 by the parties hereto as if the amendments made hereby were originally set forth in the Agreement. 7. Sections 8.01 through 8.12 (but not to exceed 3 Trading Days prior to the Second Closinginclusive) of the occurrence of the Second Closing and, if a Purchaser wants Investment Agreement shall apply mutatis mutandis to participate, it will provide the Company with at least one Trading Day notice of such participationthis Amendment No. On the Second Closing Date, each Purchaser shall deliver to the Company, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount for the Second Closing as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective shares of Preferred Stock, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second Closing1.