Conditions for Closing 3.1 The obligations of the Buyers to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, or waiver by the Buyers (in their sole discretion) in writing of the following conditions precedent (the “Conditions”) prior to the Closing: (a) each of the Warranties made by the Sellers in this Agreement shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as if made on the Closing Date; (b) each of the Sellers shall have performed or complied with all agreements, obligations and covenants contained in this Agreement that are required to be performed or complied with by each of the Sellers prior to the Closing; (c) there shall be no proceedings pending, or threatened, against any of the Buyers, the Sellers or the Company arising out of or in connection with this Agreement or its subject matter (including, without limitation, its validity, formation at issue, effect, interpretation, performance or termination); (d) all authorization and consents of any governmental authority, and any permits in connection with the Closing as contemplated under this Agreement, shall have been duly obtained and effective as of the Closing Date; including but not limited to the completion of the following: (i) the approval of the transactions contemplated under this Agreement with the local MOC (including Circular 10 approval); and (ii) the registration of the transfer of the Acquired Equity Interests from Sellers to the Buyers with the local AIC. (e) no governmental authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which (i) is in effect and (ii) has the effect of making the transfer of the Acquired Equity Interests to the Buyers illegal or otherwise prohibiting or preventing the transfer of the Acquired Equity Interests or of the transactions contemplated under this Agreement; (f) the delivery of necessary documents for the Closing, including but not limited to the copies of the documents listed under Articles 3.1, Article 6.2.1 and the duly executed Agreement; (g) the due execution of a joint venture contract (the “JV Contract”) between the Seller and the Buyers substantially in the form and substance of Schedule 3 attached hereto; and an agreed articles of association (the “AOA”) of the Company substantially in the form and substance of Schedule 4 attached hereto; (h) there has not occurred between the date of this Agreement and the Closing Date any Event that has a Material Adverse Effect; (i) the Company has duly obtained certain certificates, approvals and registrations as listed in Schedule 5, on terms acceptable and to the satisfaction of the Buyers (the “Specific Permits”); (j) the due execution and delivery of a capital increase agreement (the “Capital Increase Agreement”) between Yiyuan and the Buyers substantially in the form and substance as listed in Schedule 6, including the completion of the related registration of such capital increase by providing a copy of the approval letter issued by the relevant authorities; (k) a board resolution of the Joint Venture Company approving the capital increase under the Capital Increase Agreement and the execution of the Capital Increase Agreement; (l) a consent letter from Qingdao branch of Bank of Communication (the “Lender”) in a form and substance as listed in Schedule 7, which provides consent to the Company for the consummation of the transactions contemplated under this Agreement in accordance with the loan agreements between the Lender and the Company dated October 28, 2014 and January 20, 2015; (m) official letters from the local environmental, market supervisory and land use right authorities, in a form and substance as listed in Schedule 8, in which such authorities ensure that the Company can continue with its operation; (n) a written confirmation with the supporting documents from Seller that the transactions contemplated in this Agreement does not require any approval from the Chinese Antitrust authority, i.e., the MOC, to the satisfaction of the Buyers as listed in Schedule 9; (o) a letter jointly executed by Jishang Real Estate Co., Ltd (the “Jishang”) and Ruiyuandingshi Investment Co., Ltd (the “Ruiyuandingshi”) (in a form and substance as listed in Schedule 10), where Jishang and Ruiyuandingshi each waives any of its right in the equity interest and any other interest in the Company and any prior agreement it executed with any of the Sellers or the Company with respect to the equity transfer of the Company, and shall have no claim against any of the Sellers, the Company or the Buyers (“Waiver Letter”); and (p) The Company has completed the renewal of China Compulsory Certification as listed in Schedule 11 (the valid term at least until December 31, 2017). 3.2 The obligations of each of the Sellers to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, or written waiver by each of the Sellers (in its sole discretion) of such of the following conditions precedent prior to the Closing: (a) each of the warranties made by the Buyers in Article 8 of this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date as if made on the Closing Date; (b) the Buyers shall have performed or complied with all agreements, obligations and covenants contained in this Agreement that are required to be performed or complied with by the Buyers prior to the Closing; (c) there shall be no proceedings pending, or threatened, against the Buyers, the Sellers and the Company arising out of or in connection with this Agreement or its subject matter (including its validity, formation at issue, effect, interpretation, performance or termination) or any transaction contemplated by this Agreement, that, if adversely determined against such person, would have any impact on the Company’s Business in any aspect; and (d) no governmental authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which (i) is in effect and (ii) has the effect of making the transfer of the Acquired Equity Interests to the Buyers illegal or otherwise prohibiting or preventing consummation of the transaction contemplated under this Agreement.
Subsequent Closing Upon receipt of Shareholder Approval, the completion of the purchase and sale of the Subsequent Shares and Subsequent Warrants (the “Subsequent Closing,” together with the Original Closing, the “Closings”) shall occur on a date mutually agreed by the Investor, the Company and the Placement Agent (the “Subsequent Closing Date”), which date shall not be later than the earlier of two Business Days following receipt of the Shareholder Approval and 60 days following the Initial Closing Date (the “Subsequent Outside Date”). At the Subsequent Closing, the Company shall deliver to the Investor one or more certificates representing the number of Subsequent Shares and Subsequent Warrants, respectively, set forth in paragraph 2(b) of the Securities Purchase Agreement, each such certificate to be registered in the name of the Investor or, if so indicated on the Certificate Questionnaire, substantially in the form attached hereto as Exhibit B, in the name of a nominee designated by the Investor. In exchange for the delivery of the certificates representing such Subsequent Shares and Subsequent Warrants, the Investor shall deliver the Subsequent Purchase Price to the Company by wire transfer of immediately available funds pursuant to the Company’s written instructions. 5.1 The Company’s obligation to issue and sell the Subsequent Shares and Subsequent Warrants to the Investor shall be subject to the following conditions, any one or more of which may be waived by the Company: (a) prior receipt by the Company of an executed copy of this Agreement; (b) the accuracy in all material respects when made and on the Subsequent Closing Date of the representations and warranties made by the Investor in this Agreement and the fulfillment of the obligations of the Investor to be fulfilled by it under this Agreement on or prior to the Subsequent Closing in all material respects; (c) the execution and delivery by the Investor of the Registration Rights Agreement; (d) prior receipt by the Company of the Subsequent Purchase Price; (e) the execution and delivery by the Investor of a cross receipt, substantially in the form attached hereto as Exhibit I (the “Subsequent Cross Receipt”), evidencing receipt of the Subsequent Shares and Subsequent Warrants; (f) the absence of any order, writ, injunction, judgment or decree that questions the validity of the Agreements or the right of the Company or the Investor to enter into the Agreements or to consummate the transactions contemplated hereby and thereby; and (g) the waiting period applicable to the Subsequent Closing under the HSR Act, if any, shall have expired or been earlier terminated. 5.2 The Investor’s obligation to purchase the Subsequent Shares and Subsequent Warrants shall be subject to the following conditions, any one or more of which may be waived by the Investor: (a) the delivery to the Investor of a legal opinion, dated the Subsequent Closing Date, from counsel to the Company, substantially in the form attached hereto as Exhibit G; (b) the accuracy in all material respects of the representations and warranties made by the Company in this Agreement on the date hereof and, if different, on the Subsequent Closing Date; (c) the execution and delivery by the Company of the Registration Rights Agreement, (d) the fulfillment of the obligations of the Company to be fulfilled by it under this Agreement on or prior to the Subsequent Closing Date; (e) the execution and delivery by the Company of the Subsequent Cross Receipt evidencing receipt of the Subsequent Purchase Price; (f) the absence of any order, writ, injunction, judgment or decree that questions the validity of the Agreements or the right of the Company or the Investor to enter into such Agreements or to consummate the transactions contemplated hereby and thereby; (g) the completion of the Second Humble Transaction, to occur simultaneously with the Subsequent Closing; (h) the delivery to the Investor by the Secretary or Assistant Secretary of the Company of a certificate stating that the conditions specified in this paragraph have been fulfilled; and (i) the waiting period applicable to the Subsequent Closing under the HSR Act, if any, shall have expired or been earlier terminated. 5.3 In the event that the Subsequent Closing does not occur on or before the Subsequent Outside Date as a result of the Company’s failure to satisfy any of the conditions set forth above (and such condition has not been waived by the Investor), the Company shall return any and all funds paid hereunder to the Investor no later than one (1) Business Day following the Subsequent Outside Date and the Investor shall have no further obligations hereunder.
Additional Closings (a) Subject to the terms and conditions of this Agreement, at any time and from time to time from the date of the Initial Closing and ending on October 15, 2012, the Company may, at one or more additional closings (each an “Additional Closing” and collectively with the Initial Closing, a “Closing”), without obtaining the signature, consent or permission of any of the Lender, offer and sell to other investors, which may include one or more of the Lenders (the “New Lenders”) Notes and Warrants pursuant to this Agreement under the same terms and conditions as set forth in this Agreement, with such Notes having an aggregate Principal Amount of no more than the difference of (i) the Maximum Funding Amount minus (ii) the aggregate Principal Amount of all Notes previously sold hereunder. As set forth above, New Lenders may include persons or entities who are already Lenders under this Agreement. (b) The Company and each New Lender purchasing one or more Notes at an Additional Closing will execute counterpart signature pages to this Agreement, and each New Lender will, upon delivery by such New Lender to the Company of such signature pages, and the payment by such New Lender to the Company of the principal amount of the Note(s) to be purchased by such New Lender and the purchase price for the Warrant(s) to be acquired by such New Lender at such Additional Closing, become a party to, and bound by, this Agreement to the same extent as if such New Lender had been a Lender at the Initial Closing. The obligation of the Company to sell and issue Notes and Warrants to New Lenders at each Additional Closing, and the obligation of each New Lender at each Additional Closing to purchase a Note and Warrant, shall each be subject to satisfaction of the applicable conditions set forth in Sections 2.3 and 2.4 of this Agreement, except that unless otherwise set forth therein, each reference in Section 2.3 and 2.4 to the “Closing” shall instead refer to the applicable Additional Closing. Immediately after each Additional Closing, the Schedule of Lenders attached to this Agreement will be amended, without the consent of any other Lender, to add to the names of the New Lenders purchasing Notes and Warrants at such Additional Closing as “Lenders” hereunder and to set forth the principal amount of each Note and the Warrant purchase price for each New Lender under this Agreement. The Company will promptly furnish to each Lender upon request, a copy of the Schedule of Lenders as amended to the date of such request.
Additional Closing i. The obligations of KiOR to sell the Notes, and of the Purchasers to purchase the Notes are subject to the fulfillment, on or before each Additional Closing, of each of the following conditions: (a) The notifications of the Purchasers and KiOR pursuant to the HSR Act, if any, shall have been made and the applicable waiting period and any extensions thereof shall have expired or been terminated; and (b) Consummation of the transactions contemplated hereby or by the Transaction Documents shall not have been restrained, enjoined or otherwise prohibited or made illegal by, or conditioned upon the receipt of any approvals or consents from Governmental Authorities under, any applicable law. ii. The obligations of KiOR to sell the Notes are subject to the fulfillment, on or before any Additional Closing, of each of the following conditions, unless otherwise waived by KiOR: (a) each Purchaser shall pay to KiOR, by wire transfer of immediately available funds, the applicable amount set forth opposite such Purchaser’s name under the heading “Additional Closing” on the Schedule of Purchasers for the Notes being purchased by such Purchaser at the Additional Closing. The Additional 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 Purchase Price indicated thereon; and (b) 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 Additional Closing, and the occurrence of such Additional 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 Notes are subject to the fulfillment, on or before each Additional Closing, of each of the following conditions, unless otherwise waived by such Purchaser: (a) the Required Purchasers shall have determined that the Company shall have satisfied the applicable Milestone (as determined in the sole discretion of (and to the satisfaction of) the Required Purchasers); (b) the representations and warranties of the Company set forth in Section 4 of this Agreement shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by “materiality” or “Material Adverse Effect” in the text thereof) on and as of such Additional Closing, and no Default or Event of Default shall have occurred and be continuing as of the date of such Additional Closing; and (c) the 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 such Additional Closing.
Subsequent Closings Subject to the satisfaction (or waiver by the Agent in its sole discretion) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), each applicable Lender hereby promises to purchase from the Borrower an aggregate principal amount of additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing (including, without limitation, at the Closing), such Lender’s Commitment. Subject to the satisfaction (or waiver by the Agent) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Subsequent Closing Note Purchase Price”) of the Notes to be purchased by such Lenders at such Subsequent Closing, the Borrower shall issue and sell to each Lender on the applicable Subsequent Closing Date (as defined below), and each Lender severally, but not jointly, agrees to purchase from the Borrower on such Subsequent Closing Date, a principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing (each a “Subsequent Closing”) of any of the transactions contemplated by this Section 3.2 and the issuance of the additional Notes to be issued to the Lenders at such Subsequent Closing shall occur at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. With respect to each Subsequent Closing, the date and time of such Subsequent Closing (the “Subsequent Closing Date”) shall be 10:00 a.m., Chicago time, on the date on which the conditions set forth in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or such later date as is mutually agreed to by the Borrower and the Agent). On each Subsequent Closing Date, (i) each Lender shall pay its pro rata share of the applicable Subsequent Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at such Subsequent Closing, by wire transfer of immediately available funds in accordance with the Borrower’s written wire instructions, and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designee.