Common use of Second Closing Clause in Contracts

Second Closing. (i) The closing of the transactions contemplated by clause (ii) of Section 2.1 (the “Second Closing”) shall take place remotely via the electronic exchange of closing deliveries (i) on the day that is two (2) Business Days after the date on which the last of the conditions set forth in Section 7.4, Section 7.5 and Section 7.6 (other than any such conditions that by their terms are not capable of being satisfied until the Second Closing Date, but subject to the satisfaction or waiver of those conditions) is satisfied or, when permissible, waived by the Party for whose benefit such conditions exist; or (ii) on such other date or at such other time or place as the Parties may mutually agree upon in writing (such date, the “Second Closing Date”). The Second Closing shall be effective for all purposes at 12:01 a.m. central time on the Second Closing Date. (ii) At the Second Closing, each Seller shall deliver, or cause to be delivered, to Buyer the following: (A) evidence of resignations or removals, effective as of the Second Closing, of each of the directors, managers and officers of the Second Closing Acquired Entities with respect to whom Buyer has delivered written notice requesting resignation or removal at least five (5) Business Day prior to the Second Closing; (B) a duly executed FIRPTA Certificate and IRS Form W-9 by such Seller (or, if such Seller is classified as an entity disregarded as separate from its regarded owner, such owner), in each case, in a form reasonably acceptable to Buyer; provided that Buyer’s sole right if such Seller fails to provide such FIRPTA Certificate or IRS Form W-9 shall be to make an appropriate withholding under Sections 1445 or 1446(f) of the Code, as applicable; (C) a membership interest transfer power, duly executed by such Seller with respect to such Seller’s respective Second Closing Interests; and (D) with respect to such Seller, the certificate referred to in Section 7.6(d). (iii) At the Second Closing, Buyer shall deliver, or cause to be delivered, to each Seller the following: (A) such Seller’s portion of the Second Closing Preliminary Purchase Price, in accordance with Section 2.2; and (B) the certificate referred to in Section 7.5(c).

Second Closing. (i) The closing consummation of the transactions contemplated by clause (ii) delivery of Section 2.1 the Second Purchase Price Payment and of the Second Closing Securities (the “Second Closing”) shall take place remotely via at the electronic exchange offices of closing deliveries Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇, ▇▇▇▇▇ at 10:00 a.m. (i) on local time), as soon as practicable, but no later than the day date that is two (2) Business Days after business days following the date on which satisfaction or waiver (to the last extent, and only to the extent, permitted by applicable Law) of the conditions set forth in Section 7.47, Section 7.5 and Section 7.6 (other than any such conditions that by their terms are not capable of being satisfied until the Second Closing Date, but subject to the satisfaction or waiver of those conditions) is satisfied or, when permissible, waived by the Party for whose benefit such conditions exist; or (ii) on such other date or at such other time or and place as the Parties may Company and the Investor shall mutually agree upon in writing (such date, the “Second Closing Date”). The In lieu of an in-person Second Closing, the Second Closing may instead be accomplished by e-mail (in PDF format) transmission to the respective offices of legal counsel for the parties hereto of the requisite documents, duly executed where required, delivered upon actual confirmed receipt, with originals to be delivered as promptly as practicable following the Second Closing. At the Second Closing: (a) the Note and the Securities Issuance Deliverables with respect to the Note shall be effective for all purposes automatically released from the Escrow to the Investor (unless the Note has been issued, sold and delivered (through release from the Escrow) to the Investor prior to the Second Closing accordance with Section 2.3); (b) if (x) the FCC Approval shall have been received or (y) the FCC Approval shall no longer be required as a result of the consummation of the FCC Licenses Disposal Actions, the Company shall file with the Secretary of State of the State of Delaware the Series A Certificate of Designations; (c) if (x) the FCC Approval shall have been received or (y) the FCC Approval shall no longer be required as a result of the consummation of the FCC Licenses Disposal Actions, the Investor shall make payment of the Second Purchase Price Payment by wire transfer of immediately available funds to an account designated by the Company at 12:01 a.m. central time on least two (2) business days in advance of the Second Closing Date.; and (iid) At if (x) the Second Closing, each Seller FCC Approval shall deliver, have been received or cause to (y) the FCC Approval shall no longer be delivered, to Buyer the following: (A) evidence of resignations or removals, effective required as a result of the Second Closing, of each consummation of the directorsFCC Licenses Disposal Actions, managers the Company shall execute and officers deliver the Securities Issuance Deliverables with respect to the Contingent Payment Right with a Contingent Payment Right Share Number of the Second Closing Acquired Entities CPR Share Number; provided, that if the Stockholder Approval and all Communications Regulatory Approvals shall have been received, the Company shall instead deliver to the Investor certificates or book-entry statements representing the number of shares of Common Stock set forth in Section 2.2(b)(ii), and the Company shall execute and deliver the Securities Issuance Deliverables with respect to whom Buyer has delivered written notice requesting resignation or removal at least five (5) Business Day prior the Common Stock to the Second Closing; (B) a duly executed FIRPTA Certificate and IRS Form W-9 by such Seller (or, if such Seller is classified as an entity disregarded as separate from its regarded owner, such owner), in each case, in a form reasonably acceptable to Buyer; provided that Buyer’s sole right if such Seller fails to provide such FIRPTA Certificate or IRS Form W-9 shall be to make an appropriate withholding under Sections 1445 or 1446(f) of the Code, as applicable; (C) a membership interest transfer power, duly executed by such Seller with respect to such Seller’s respective Second Closing Interests; and (D) with respect to such Seller, the certificate referred to in Section 7.6(d)Investor. (iii) At the Second Closing, Buyer shall deliver, or cause to be delivered, to each Seller the following: (A) such Seller’s portion of the Second Closing Preliminary Purchase Price, in accordance with Section 2.2; and (B) the certificate referred to in Section 7.5(c).

Second Closing. (ia) The closing obligations of Velocitas to purchase the Second Note, and of the transactions contemplated by clause (ii) of Section 2.1 (Purchasers to acquire the “Second Closing”) shall take place remotely via the electronic exchange of closing deliveries (i) on the day that is two (2) Business Days after the date on which the last of the conditions set forth in Section 7.4, Section 7.5 and Section 7.6 (other than any such conditions that by their terms Preferred Shares are not capable of being satisfied until the Second Closing Date, but subject to the satisfaction fulfillment, on or waiver of those conditions) is satisfied or, when permissible, waived by the Party for whose benefit such conditions exist; or (ii) on such other date or at such other time or place as the Parties may mutually agree upon in writing (such date, the “Second Closing Date”). The Second Closing shall be effective for all purposes at 12:01 a.m. central time on the Second Closing Date. (ii) At the Second Closing, each Seller shall deliver, or cause to be delivered, to Buyer the following: (A) evidence of resignations or removals, effective as of before the Second Closing, of each of the directorsfollowing conditions, managers unless otherwise waived by Velocitas in its sole discretion: i. The representations and officers warranties of the Company set forth herein and the other Transaction Agreement shall be true and complete in all material respects as of the date of the Second Closing Acquired Entities with respect as though made on and as of such date (other than those representations and warranties that are made as of a specified date, in which case, such representations and warranties shall be true and correct in all material respects as of such specified date); ii. the Company shall have performed all of the covenants of the Company set forth herein and the other Transaction Agreements that are required to whom Buyer has delivered written notice requesting resignation be performed on or removal at least five (5) Business Day prior to the Second Closing; iii. since the date of this Agreement, no Material Adverse Effect shall have occurred; iv. the Vice President and Chief Financial Officer of the Company shall deliver Velocitas at the Second Closing a certificate certifying that the conditions specified in Sections 5.2(a)(i), 5.2(a)(i)(ii) and 5.2(a)(i)(iii) have been fulfilled; v. the Company shall have delivered to Velocitas at the Second Closing: (A) the Second Note, duly executed by the Company; (B) a the Warrant, duly executed FIRPTA Certificate and IRS Form W-9 by such Seller (or, if such Seller is classified as an entity disregarded as separate from its regarded owner, such owner), in each case, in a form reasonably acceptable to Buyerthe Company; provided that Buyer’s sole right if such Seller fails to provide such FIRPTA Certificate or IRS Form W-9 shall be to make an appropriate withholding under Sections 1445 or 1446(f) of the Code, as applicable; (C) a membership interest copy of an irrevocable instruction letter to the transfer poweragent of the Company directing the transfer agent to issue within, three (3) Business Days of the Second Closing, certificates representing the Assignment Shares bearing such legends as are required by the Transaction Agreements; and (D) the Velocitas Subdistributor Assignment, duly executed by such Seller with respect the Company; vi. the Company shall have delivered to such Seller’s respective Second Closing Interests; and the Purchasers a copy of an irrevocable instruction letter to the transfer agent of the Company directing the transfer agent to issue, within three (D3) with respect to such Seller, the certificate referred to in Section 7.6(d). (iii) At Business Days of the Second Closing, Buyer certificates representing the Preferred Shares bearing such legends as are required by the Transaction Agreements; vii. all authorizations, approvals or permits, if any, of any Governmental Entity that are required in connection with the lawful issuance and sale of the Second Note, the Preferred Shares, the Warrant and the Assignment Shares (and the Common Stock issuable upon conversion thereof) pursuant to this Agreement shall deliverbe obtained and effective as of the Second Closing; viii. the Company shall have provided notices of the transactions contemplated by the Transaction Agreement to any persons holding (or allegedly holding) any preemptive or similar rights, or cause to be delivered, to each Seller the following: and either (A) such Seller’s portion of rights shall have been waived with respect to the Second Closing Preliminary Purchase Pricetransactions contemplated by the Transaction Agreements, in accordance with Section 2.2; and or (B) the certificate referred period for exercise shall have expired with respect to the transactions contemplated by the Transaction Agreements without any holder of such preemptive rights having exercised such rights; ix. the Company shall have taken all necessary actions to give effect to the resignation of each of the Resigning Officers and Directors, and the Board of Directors shall be comprised with, only the following individuals: ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇; and x. the Purchasers shall have received an opinion from one or more law firms dated as of the Second Closing, in substantially the form attached hereto, with customary opinions regarding corporate authority, valid and binding obligation, valid issuance of the Securities and compliance with or exemption from Section 5 under the Securities Act. (b) The obligations of the Company to issue the Second Note, the Warrant, the Assignment Shares and the Preferred Shares at the Second Closing are subject to the fulfillment, on or before the Second Closing, of each of the following conditions, unless otherwise waived by the Company in its sole discretion: i. The representations and warranties of the Purchasers in Section 7.5(c)3 and Velocitas contained in Section 4 shall be true and correct in all respects as of the Second Closing; ii. Velocitas and the Purchasers 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 Velocitas or the Purchasers on or prior to the Second Closing; iii. Velocitas shall have delivered to the Company at the Second Closing, the Velocitas Subdistributor Assignment duly executed by Velocitas GmbH; iv. The Purchasers shall have delivered to the Company at the Second Closing, (A) the Investors’ Rights Agreement duly executed by the Purchasers; and (B) the Voting Agreement duly executed by the Purchasers; v. Velocitas GmbH shall have delivered to the Company all consents (other than those of the Company, Altrazeal Trading GmbH or Altrazeal AG) required in connection with the Velocitas Subdistributor Assignment. vi. All authorizations, approvals or permits, if any, of any Governmental Entity that are required in connection with the lawful issuance and sale of the Second Note, the Warrant, the Assignment Shares, the Preferred Shares (and the Common Stock issuable upon conversion thereof) pursuant to this Agreement shall be obtained and effective as of the Second Closing.

Second Closing. (i) The second closing of the transactions contemplated by clause (ii) of Section 2.1 (the “Second Closing”) shall take place remotely via at the electronic exchange offices of closing deliveries (i) the Purchaser on the fourteenth business day that is two (2) Business Days after following the date on which the last satisfaction or waiver of the conditions set forth in Section 7.4, Section 7.5 and Section 7.6 this section 4.2. (other than any such conditions that by their terms are not capable a) The obligation of being satisfied until the Purchaser to consummate the Second Closing Date, but is subject to the satisfaction fulfillment or waiver of those conditions) is satisfied or, when permissible, waived by the Party for whose benefit such Purchaser of the following conditions exist; on the date of the Second Closing: (i) on or before December 14, 2008, the First Precedent Condition was completed; (ii) all the Company’s and Shareholders’ representations and warranties in this agreement were true and correct on such other the date or at such other time or place as the Parties may mutually agree upon in writing (such dateof this agreement, the “Second Closing Date”). The Second Closing and shall be effective for true and correct in all purposes material respects at 12:01 a.m. central time on the Second Closing Dateas if made again at and as of that time save for any matter incorrect because of subsequent action by the Purchaser since First Closing; (iii) the Company and the Shareholders shall have performed and carried out all the covenants and other provisions in this agreement, required to have been performed and carried out by it prior to the Second Closing (except that breach thereof which is not material breach shall not prevent the performance of the Second Closing); (iv) there shall not be in effect any injunction or restraining order issued by a court of competent jurisdiction in any action or proceeding against the consummation of the transactions contemplated by this agreement; and (v) the Company shall have delivered to the Purchaser a certificate of an executive officer or certificate signed by the Permitted Transferees or their officers, as the case maybe, confirming that the conditions specified in clauses (ii) through (v) above have been fulfilled. (iib) At the Second Closing, each Seller the Purchaser shall deliver, issue to the Company or cause to be delivered, to Buyer the following:its Permitted Transferees Debenture A. (Ac) evidence of resignations or removals, effective as of the Second Closing, of each of the directors, managers and officers of The obligations to consummate the Second Closing Acquired Entities with respect to whom Buyer has delivered written notice requesting resignation or removal and the Third Closing may be terminated at least five (5) Business Day any time prior to the Second Closing; : (Bi) by a duly executed FIRPTA Certificate written agreement between the Company and IRS Form W-9 the Purchaser; or (ii) by such Seller (orthe Purchaser, if such Seller is classified as an entity disregarded as separate from its regarded owner, such owner), any condition specified in each case, this section 4.2 shall not have been satisfied or waived in a form reasonably acceptable to Buyer; provided that Buyer’s sole right if such Seller fails to provide such FIRPTA Certificate writing by the Purchaser on or IRS Form W-9 shall be to make an appropriate withholding under Sections 1445 or 1446(f) before the date of the Code, as applicable; (C) a membership interest transfer power, duly executed by such Seller with respect to such Seller’s respective Second Closing Interests; and (D) with respect to such Seller, the certificate referred to in Section 7.6(d). (iii) At the Second Closing, Buyer shall deliver, or cause to be delivered, to each Seller the following: (A) such Seller’s portion of the Second Closing Preliminary Purchase Price, in accordance with Section 2.2; and (B) the certificate referred to in Section 7.5(c).

Second Closing. Unless otherwise consummated at the First --------------- Closing (iwhich, in that event, the following conditions precedent other than subsection (iv) The closing below shall be satisfied in connection with the First Closing), the obligation of the transactions contemplated by clause (ii) of Section 2.1 (Buyer hereunder to purchase the “Second Closing”) shall take place remotely via Convertible Debenture and the electronic exchange of closing deliveries (i) on Second Warrants at the day that Second Closing is two (2) Business Days after subject to the date on which the last of the conditions set forth in Section 7.4satisfaction, Section 7.5 and Section 7.6 (other than any such conditions that by their terms are not capable of being satisfied until at or before the Second Closing Date, but subject of each of the following conditions: (i) The Company shall have executed appropriate amendments to the satisfaction or waiver Other Transaction Documents providing for the inclusion thereunder of those conditions) is satisfied orthe Second Convertible Debenture, when permissibleSecond Warrants and Second Warrant Shares, waived by the Party for whose benefit such conditions exist; or (ii) on such other date or at such other time or place as the Parties case may mutually agree upon in writing (such datebe, and delivered them to the “Second Closing Date”). The Second Closing shall be effective for all purposes at 12:01 a.m. central time on the Second Closing DateBuyer. (ii) At The representations and warranties of the Second ClosingCompany shall be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality in Section 3 above, each Seller in which case, such representations and warranties shall deliver, or cause to be delivered, to Buyer true and correct without further qualification) as of the following: (A) evidence of resignations or removals, effective date when made and as of the Second ClosingClosing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, of each satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to 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 the directorsCompany, managers and officers dated as of the Second Closing Acquired Entities with respect to whom Buyer has delivered written notice requesting resignation or removal at least five (5) Business Day prior Date, to the Second Closing; (B) a duly executed FIRPTA Certificate foregoing effect and IRS Form W-9 as to such other matters as may be reasonably requested by such Seller (orthe Buyer including, if such Seller is classified without limitation an update as an entity disregarded as separate from its regarded owner, such owner), in each case, in a form reasonably acceptable to Buyer; provided that Buyer’s sole right if such Seller fails to provide such FIRPTA Certificate or IRS Form W-9 shall be to make an appropriate withholding under Sections 1445 or 1446(f) of the Code, as applicable; (C) a membership interest transfer power, duly executed by such Seller with respect to such Seller’s respective Second Closing Interests; and (D) with respect to such Seller, Date regarding the certificate referred to representation contained in Section 7.6(d)3(c) above. (iii) At 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 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 deliverhave received a certificate, or cause to be deliveredexecuted by the two officers of the Company, to each Seller the following: (A) such Seller’s portion dated as of the Second Closing Preliminary Purchase PriceDate, in accordance with Section 2.2; andto the foregoing effect. The Buyers have no obligation to fund at the Second Closing if the Company has filed the Registration Statement. (Bv) The Company shall have provided to the Buyer a certificate referred to of good standing from the secretary of the state in Section 7.5(c)which the Company is incorporated.

Second Closing. (i) The closing of Subject to Section 5.4(c), during the transactions contemplated by clause (ii) of Section 2.1 (the “Second Closing”) shall take place remotely via the electronic exchange of closing deliveries (i) on the day that is two (2) Business Days after period from the date on which of this Agreement until the last earlier of the conditions set forth in Section 7.4, Section 7.5 and Section 7.6 (other than any such conditions that by their terms are not capable of being satisfied until the Second Closing DateDate and any termination of this Agreement pursuant to ARTICLE IX, but subject to except (w) as permitted under, contemplated by or approved under this Agreement or any other Transaction Agreement (including the satisfaction or waiver of those conditionsManufacturing and Sale Agreement), (x) is satisfied or, when permissible, waived by the Party for whose benefit such conditions exist; or (ii) on such other date or at such other time or place as the Parties may mutually agree upon Buyer Parent shall otherwise consent in writing (such dateconsent not to be unreasonably withheld, delayed or conditioned), (y) as required by applicable Law, or (z) as set forth on Schedule 5.4(b), the “Second Closing Date”). The Second Closing Seller Parent shall, and shall be effective for all purposes at 12:01 a.m. central time on cause the Second Closing Date. (ii) At the Second Closing, each Seller shall deliver, or cause to be delivered, to Buyer the followingSellers and its other controlled Affiliates to: (A) evidence conduct the NAND Business in all material respects in the ordinary course of resignations or removals, effective as of the Second Closing, of each of the directors, managers and officers of the Second Closing Acquired Entities with respect to whom Buyer has delivered written notice requesting resignation or removal at least five (5) Business Day prior to the Second Closing; (B) a duly executed FIRPTA Certificate and IRS Form W-9 by such Seller (or, if such Seller is classified as an entity disregarded as separate from its regarded owner, such owner), in each case, in a form reasonably acceptable to Buyer; provided that Buyer’s sole right if such Seller fails to provide such FIRPTA Certificate or IRS Form W-9 shall be to make an appropriate withholding under Sections 1445 or 1446(f) of the Code, as applicable; (C) a membership interest transfer power, duly executed by such Seller with respect to such Seller’s respective Second Closing Interests; and (D) with respect to such Seller, the certificate referred to in Section 7.6(d). (iii) At the Second Closing, Buyer shall deliver, or cause to be delivered, to each Seller the following: (A) such Seller’s portion of the Second Closing Preliminary Purchase Price, in accordance with Section 2.2business; and (B) maintain (1) the certificate referred tangible Second Closing Transferred Assets in their condition as of the First Closing Date, ordinary wear and tear excepted, (2) insurance upon the Second Closing Transferred Assets in such amounts and of such kinds comparable to that in effect on the First Closing Date, and (3) their respective commercial relationships with customers, suppliers and other Persons with whom any Seller deals in connection with the NAND Business in the ordinary course. (ii) Subject to Section 7.5(c5.4(c), during the period from the First Closing Date until the earlier of the Second Closing Date and any termination of this Agreement pursuant to ARTICLE IX, except (w) as expressly permitted under, contemplated by or approved under this Agreement or any other Transaction Agreement (including the Manufacturing and Sale Agreement), (x) as the Buyer Parent shall otherwise consent in writing (such consent not to be unreasonably withheld, delayed or conditioned), (y) as required by applicable Law, or (z) as set forth on Schedule 5.4(b), the Seller Parent shall not, and shall cause the Sellers and its other controlled Affiliates not to, in connection with the NAND Business and the Second Closing Transferred Assets, take any of the following actions, as applicable: (A) enter into, adopt, amend or terminate any OpCo Employee Plan; provided that, for the avoidance of doubt, the Seller Parent or its Affiliates shall continue to provide compensation and benefits for the NAND Business Employees under its compensation and benefits programs (other than OpCo Employee Plans) until such time after the First Closing as the Seller Parent or its Affiliates and the Buyer Parent or its Affiliates elect to establish OpCo Employee Plans; provided, however, the Seller Parent and its Affiliates (other than OpCo) shall be permitted to enter to any agreement or other arrangement with any NAND Business Employee relating to any stay, retention, transaction or other similar bonus or award in respect of the Second Closing Transaction and to the extent of any conflict between this Section 5.4(b)(ii)(A) and any provision of any other Transaction Agreement (including the Manufacturing and Sale Agreement), this Section 5.4(b)(ii)(A) shall control, provided that the Liability for any such bonus or award shall not be a Second Closing Assumed Liability; (B) except as required by applicable Law or Labor Agreement or the terms of an Employee Plan as in effect as of the date of this Agreement or adopted in accordance with the terms hereof, (i) enter into, adopt, amend or terminate any Employee Plan (or any plan or agreement that would be an Employee Plan if in effect on the date hereof), other than the adoption, entry into, amendment or termination of any Employee Plan that (x) is not targeted only to NAND Business Employees, (y) is in the ordinary course of business or (z) would not be expected to result in a material increase in Liability to the Buyer Parent, Buyer or their Affiliates, (ii) transfer the employment of any NAND Business Employee such that the employee would no longer meet the criteria necessary to qualify as a NAND Business Employee other than as a result of such NAND Business Employee (other than a Key Employee or Senior Business Employee who is a NAND Business Employee who has received and accepted an offer of employment from the Buyer Parent or one of its Affiliates, except with the consent of the general manager of the employer of such NAND Business Employee) applying and being selected in a competitive process not targeted at NAND Business Employees, (iii) terminate the employment of any NAND Business Employee other than for cause or, for those NAND Business Employees other than any Key Employee and Senior Business Employee who has received and accepted an offer of employment from the Buyer Parent or one of its Affiliates, in the ordinary course of business consistent with past practices, (iv) hire any individual for the NAND Business who would be a NAND Business Employee if such individual was employed by the Sellers or their Affiliates as of the date hereof, or transfer the employment of any individual employed by the Sellers or their Affiliates such that the individual would become a NAND Business Employee, in either case, other than a Core Division NAND Employee as contemplated by Section 6.1(a) or to replace any NAND Business Employee (except for the replacement of any Key Employee) whose employment terminates voluntarily or terminates or transfers in accordance with clauses (ii) or (iii) hereof and with compensation and benefits substantially similar to those provided to similarly situated NAND Business Employees; (C) to the extent relating to the NAND Business Employees, (i) enter into any negotiation in respect of, enter into or amend any Labor Agreement or (ii) recognize or certify any Employee Representative Body; (D) except as necessary in the ordinary conduct of the Business consistent with past practice, (i) grant or acquire, agree to grant to or acquire from any Person, or, except as set forth in clause (F) of this Section 5.4(b)(ii), dispose of or permit to lapse any rights to any material Intellectual Property Rights (other than other than Contracts pursuant to which the Seller Parent (or any of its Affiliates) grants a License to a company-wide portfolio of Patents owned, controlled or licensable by the Seller Parent (or any of its Affiliates)), or disclose or agree to disclose to any Person, other than representatives of the Buyer Parent, any Trade Secret, or (ii) compromise, settle or agree to settle, or consent to judgment in, any one or more Actions or institute any Action concerning any material Intellectual Property Rights of the NAND Business; (E) grant, modify or terminate any rights, or enter into any Contract, that would prevent, restrict or conflict with the entry into or the grant of any rights or licenses under, or the performance of, any of the terms of the NAND IP License Agreement; (F) except in the ordinary course of business consistent with past practice, fail to (1) pay any annuity, maintenance or other fee or file any document in connection with granted patents, registered trademarks, and registered copyrights included in the Transferred NAND IP or (2) diligently prosecute and respond to any office action when due (subject to extension of such due date, as permitted by applicable Law) in connection with any pending patent application included in the Transferred NAND IP; provided that the Seller Parent may abandon a patent application after it has been finally rejected or when the next step for that application is to appeal a rejection; (G) unless required by applicable Law, (I) change any material Tax election, (II) make any material Tax election (to the extent making such election requires the filing of a Tax Return), (III) file any Tax Return other than in the ordinary course of business consistent with past practices, or any amended Tax Return, or (IV) apply for, obtain, or enter into any Tax ruling, closing agreement or other similar Contract, agreement or arrangement with a Governmental Entity, if, in the case of the foregoing clauses (I) - (IV), such action would reasonably be expected to increase the liability of the Buyer Parent or any of its Affiliates (including, after the Second Closing, OpCo) for Taxes that are not Retained Tax Liabilities; (H) sell, dispose, encumber or pledge any of the equity interests of OpCo or grant options, warrants, convertible or exchangeable securities, subscriptions, rights, stock appreciation rights, calls or commitments of any kind with respect to such equity interests, or grant any rights to purchase or acquire equity interests of OpCo; or (I) declare, set aside or make any payment or distribution of cash or other property with respect to OpCo’s outstanding capital stock or other equity interests in excess of an amount equal to (I) the Deferred Revenue Amount minus (II) all Taxes imposed on China OpCo in connection with the receipt or recognition of income resulting from the Deferred Revenue Amount (including any such Taxes reasonably expected to be imposed on China OpCo after the Second Closing) minus (III) any amount of the Deferred Revenue Amount previously distributed by, or transferred out of, OpCo minus (IV) all Taxes reasonably expected to be imposed on China OpCo or the direct equityholder of China OpCo in connection with any distribution of any portion of the Deferred Revenue Amount (as reduced pursuant to clauses (II) through (III)) after the Second Closing. (iii) Notwithstanding the foregoing, nothing in this Section 5.4(b) shall prohibit or otherwise restrict in any way the operation of the business of the Seller Parent or any of its Subsidiaries, except solely with respect to the conduct of the NAND Business, the Second Closing Transferred Assets as expressly provided in this Section 5.4(b), and nothing contained herein shall give the Buyer Parent or any Buyer any right to manage, control, direct or be involved in the management of the Seller Parent or any Seller at any time.

Second Closing. 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 event that the Notes issued in the Initial Closing have not previously been converted pursuant to Section 3 below, upon: (i) The closing of the transactions contemplated by clause providing advance notice to all Purchasers; and (ii) of Section 2.1 (subject to the “Second Closing”) shall take place remotely via the electronic exchange of closing deliveries (i) on the day that is two (2) Business Days after the date on which the last satisfaction or waiver of the conditions set forth in Section 7.46 hereof, the Company will 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 7.5 3.2 or 3.3 and Section 7.6 (other than any such conditions that by their terms are not capable of being satisfied until the Second Closing Datehas not yet occurred, but subject the Company shall provide each Purchaser with twenty (20) days notice prior to the satisfaction consummation of the Change of Control or waiver of those conditions) is satisfied orInitial Public Offering, when permissible, waived by the Party for whose benefit such conditions exist; or (ii) on such other date or at such other time or place as the Parties may mutually agree upon in writing (such date, the “Second Closing Date”)applicable. The Second Closing shall be effective for all purposes held at 12:01 a.m. central ▇▇▇▇▇ Lovells at a time on 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 Date. (ii) At mutually agree upon, orally or in writing; provided, that in the Second Closing, each Seller shall deliver, or cause to be delivered, to Buyer event the following: (A) evidence of resignations or removals, effective as Company has provided the Purchasers with notice of the Second Closingconsummation of a Change of Control or Initial Public Offering, of each of the directorsas applicable, managers and officers of the Second Closing Acquired Entities with respect to whom Buyer has delivered written notice requesting resignation or removal at least five shall occur no later than ten (510) Business Day days prior to the Second Closing; (B) a duly executed FIRPTA Certificate and IRS Form W-9 by such Seller (or, if such Seller is classified as an entity disregarded as separate from its regarded owner, such owner), in each case, in a form reasonably acceptable to Buyer; provided that Buyer’s sole right if such Seller fails to provide such FIRPTA Certificate or IRS Form W-9 shall be to make an appropriate withholding under Sections 1445 or 1446(f) consummation of the CodeChange of Control or Initial Public Offering, as applicable; (C) a membership interest transfer power, duly executed by such Seller with respect to such Seller’s respective Second . The Initial Closing Interests; and (D) with respect to such Seller, the certificate referred to in Section 7.6(d). (iii) At the Second Closing, Buyer shall deliver, or cause to be delivered, to each Seller the following: (A) such Seller’s portion of and the Second Closing Preliminary Purchase Price, in accordance with Section 2.2; and (B) the certificate are each referred to in Section 7.5(c)herein as a “Closing.” Any sale of Notes at a Closing shall be upon the same terms and conditions as those contained herein; and such persons or entities, by delivery of the appropriate executed signature pages, shall become parties to this Agreement and shall have the rights and obligations of a Purchaser hereunder.

Second Closing. (ia) The closing obligations of Velocitas to purchase the Second Note, and of the transactions contemplated by clause (ii) of Section 2.1 (Purchasers to acquire the “Second Closing”) shall take place remotely via the electronic exchange of closing deliveries (i) on the day that is two (2) Business Days after the date on which the last of the conditions set forth in Section 7.4, Section 7.5 and Section 7.6 (other than any such conditions that by their terms Preferred Shares are not capable of being satisfied until the Second Closing Date, but subject to the satisfaction fulfillment, on or waiver of those conditions) is satisfied or, when permissible, waived by the Party for whose benefit such conditions exist; or (ii) on such other date or at such other time or place as the Parties may mutually agree upon in writing (such date, the “Second Closing Date”). The Second Closing shall be effective for all purposes at 12:01 a.m. central time on the Second Closing Date. (ii) At the Second Closing, each Seller shall deliver, or cause to be delivered, to Buyer the following: (A) evidence of resignations or removals, effective as of before the Second Closing, of each of the directorsfollowing conditions, managers unless otherwise waived by Velocitas in its sole discretion: i. The representations and officers warranties of the Company set forth herein and the other Transaction Agreement shall be true and complete in all material respects as of the date of the Second Closing Acquired Entities with respect as though made on and as of such date (other than those representations and warranties that are made as of a specified date, in which case, such representations and warranties shall be true and correct in all material respects as of such specified date); ii. the Company shall have performed all of the covenants of the Company set forth herein and the other Transaction Agreements that are required to whom Buyer has delivered written notice requesting resignation be performed on or removal at least five (5) Business Day prior to the Second Closing; iii. since the date of this Agreement, no Material Adverse Effect shall have occurred; iv. the Vice President and Chief Financial Officer of the Company shall deliver Velocitas at the Second Closing a certificate certifying that the conditions specified in Sections 5.2(a)(i), 5.2(a)(i)(ii) and 5.2(a)(i)(iii) have been fulfilled; v. the Company shall have delivered to Velocitas at the Second Closing: (A) the Second Note, duly executed by the Company; (B) a the Warrant, duly executed FIRPTA Certificate and IRS Form W-9 by such Seller (or, if such Seller is classified as an entity disregarded as separate from its regarded owner, such owner), in each case, in a form reasonably acceptable to Buyerthe Company; provided that Buyer’s sole right if such Seller fails to provide such FIRPTA Certificate or IRS Form W-9 shall be to make an appropriate withholding under Sections 1445 or 1446(f) of the Code, as applicable; (C) a membership interest copy of an irrevocable instruction letter to the transfer poweragent of the Company directing the transfer agent to issue within, three (3) Business Days of the Second Closing, certificates representing the Assignment Shares bearing such legends as are required by the Transaction Agreements; and (D) the Velocitas Subdistributor Assignment, duly executed by such Seller with respect the Company; vi. the Company shall have delivered to such Seller’s respective Second Closing Interests; and the Purchasers a copy of an irrevocable instruction letter to the transfer agent of the Company directing the transfer agent to issue, within three (D3) with respect to such Seller, the certificate referred to in Section 7.6(d). (iii) At Business Days of the Second Closing, Buyer certificates representing the Preferred Shares bearing such legends as are required by the Transaction Agreements; vii. all authorizations, approvals or permits, if any, of any Governmental Entity that are required in connection with the lawful issuance and sale of the Second Note, the Preferred Shares, the Warrant and the Assignment Shares (and the Common Stock issuable upon conversion thereof) pursuant to this Agreement shall deliverbe obtained and effective as of the Second Closing; viii. the Company shall have provided notices of the transactions contemplated by the Transaction Agreement to any persons holding (or allegedly holding) any preemptive or similar rights, or cause to be delivered, to each Seller the following: and either (A) such Seller’s portion of rights shall have been waived with respect to the Second Closing Preliminary Purchase Pricetransactions contemplated by the Transaction Agreements, in accordance with Section 2.2; and or (B) the certificate referred period for exercise shall have expired with respect to the transactions contemplated by the Transaction Agreements without any holder of such preemptive rights having exercised such rights; ix. the Company shall have taken all necessary actions to give effect to the resignation of each of the Resigning Officers and Directors, and the Board of Directors shall be comprised with, only the following individuals: A▇▇▇▇▇▇ ▇▇▇▇, B▇▇▇▇▇▇ ▇▇▇▇▇, A▇▇▇▇ ▇▇▇▇, V▇▇▇▇▇▇ ▇▇▇▇ and O▇▇▇▇▇ ▇▇▇▇▇; and x. the Purchasers shall have received an opinion from one or more law firms dated as of the Second Closing, in substantially the form attached hereto, with customary opinions regarding corporate authority, valid and binding obligation, valid issuance of the Securities and compliance with or exemption from Section 5 under the Securities Act. (b) The obligations of the Company to issue the Second Note, the Warrant, the Assignment Shares and the Preferred Shares at the Second Closing are subject to the fulfillment, on or before the Second Closing, of each of the following conditions, unless otherwise waived by the Company in its sole discretion: i. The representations and warranties of the Purchasers in Section 7.5(c)3 and Velocitas contained in Section 4 shall be true and correct in all respects as of the Second Closing; ii. Velocitas and the Purchasers 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 Velocitas or the Purchasers on or prior to the Second Closing; iii. Velocitas shall have delivered to the Company at the Second Closing, the Velocitas Subdistributor Assignment duly executed by Velocitas GmbH; iv. The Purchasers shall have delivered to the Company at the Second Closing, (A) the Investors’ Rights Agreement duly executed by the Purchasers; and (B) the Voting Agreement duly executed by the Purchasers; v. Velocitas GmbH shall have delivered to the Company all consents (other than those of the Company, Altrazeal Trading GmbH or Altrazeal AG) required in connection with the Velocitas Subdistributor Assignment. vi. All authorizations, approvals or permits, if any, of any Governmental Entity that are required in connection with the lawful issuance and sale of the Second Note, the Warrant, the Assignment Shares, the Preferred Shares (and the Common Stock issuable upon conversion thereof) pursuant to this Agreement shall be obtained and effective as of the Second Closing.

Second Closing. (ia) The closing of the transactions contemplated by clause (ii) purchase and sale of Section 2.1 the Additional Royalties (the “Second Closing”) shall take place remotely via on the electronic Second Closing Date by the exchange of closing deliveries documents electronically or by email, subject to the satisfaction of the following conditions in favour of the Purchaser, each of which may be waived by the Purchaser in its sole discretion: (i) on the day that is two (2) Business Days after the date on which the last no Material Adverse Change shall have occurred and be continuing as of the conditions set forth in Section 7.4, Section 7.5 and Section 7.6 (other than any such conditions that by their terms are not capable of being satisfied until the Second Closing Date, but subject to the satisfaction or waiver of those conditions) is satisfied or, when permissible, waived by the Party for whose benefit such conditions exist; or (ii) on such other date or at such other time or place as the Parties may mutually agree upon in writing (such date, the “Second Closing Date”). The Second Closing shall be effective for all purposes at 12:01 a.m. central time on the Second Closing Date.; (ii) At each of the Second Closing, each Fundamental Representations and Warranties of the Seller shall deliver, or cause to in this Purchase and Sale Agreement will be delivered, to Buyer the following: (A) evidence of resignations or removals, effective true and correct as of the Second Closing, of each and all other representations and warranties of the directorsSeller contained in this Purchase and Sale Agreement shall have been true and correct as of the Closing and, managers subject to the transactions that occurred at the Closing, will be true and officers correct as of the Second Closing Acquired Entities with respect to whom Buyer has delivered written notice requesting resignation or removal at least five (5) Business Day prior except to the extent that all inaccuracies or incompleteness therein would not, in the aggregate, reasonably be expected to result in a Material Adverse Change (it being understood that for the purposes of such 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, to that effect shall have been delivered to the Purchaser. On the delivery of this certificate, the representations and warranties of the Seller in this Purchase and Sale Agreement will be deemed to have been made at and as of the Second Closing Date with the same force and effect as if made at and as of that time, in each case subject to the transactions that occurred at the Closing; (Biii) the Seller shall have delivered a duly executed FIRPTA Certificate and IRS Form W-9 by such Seller (or, if such Seller is classified as an entity disregarded as separate from its regarded owner, such owner), ▇▇▇▇ of Sale in each case, in a form reasonably acceptable to Buyer; provided that Buyer’s sole right if such Seller fails to provide such FIRPTA Certificate or IRS Form W-9 shall be to make an appropriate withholding under Sections 1445 or 1446(f) respect of the CodeAdditional Royalties, as applicable; (C) a membership interest transfer powerdated the Second Closing Date, duly executed by such the Seller, which ▇▇▇▇ of Sale shall automatically become effective upon receipt by the Seller with respect to such Seller’s respective Second Closing Interestsof the Additional Purchase Price from the Purchaser; and (Div) with respect the Seller shall deliver such other certificates, documents and financing statements as the Purchaser may reasonably request, including a financing statement reasonably satisfactory to such Sellerthe Purchaser to create, evidence and perfect the certificate referred sale, assignment, transfer, and conveyance of the Additional Royalties pursuant to in Section 7.6(d2.1 and the back-up security interest granted pursuant to Section 2.1(d). (iii) At the Second Closing, Buyer shall deliver, or cause to be delivered, to each Seller the following: (A) such Seller’s portion of the Second Closing Preliminary Purchase Price, in accordance with Section 2.2; and (B) the certificate referred to in Section 7.5(c).