Common use of Additional Equity Capital Clause in Contracts

Additional Equity Capital. Subject to the exceptions described below, the Company will not, without the prior written consent of Rose Xxxx Xxxital Management, L.P. ("ROSE XXXX"), negotiate or contract with any party to obtain additional equity financing (including debt financing with an equity component) that involves (A) the issuance of Common Stock (whether upon conversion or exercise of a security convertible into or exercisable for Common Stock ("CONVERTIBLE SECURITIES") or otherwise) at a discount to the market price of the Common Stock on the date of issuance thereof or, in the case of Convertible Securities, the date of issuance of such Convertible Securities (taking into account the value of any warrants or options to acquire Common Stock issued in connection therewith) or (B) the issuance of Convertible Securities that are convertible into an indeterminate number of shares of Common Stock or where the issuance price of the Common Stock upon conversion or exercise of such Convertible Securities (including, based upon any conversion, exchange or reset formula) changes at any time after the date of issuance of such Convertible Securities, during the period (the "LOCK-UP PERIOD") beginning on the Closing Date and ending ninety (90) days from the date the Registration Statement (as defined in the Registration Rights Agreement) is first declared effective (plus any days in which sales cannot be made thereunder) (the limitations referred to in this sentence are collectively referred to as the "CAPITAL RAISING LIMITATIONS"). The Capital Raising Limitations shall not apply to any transaction involving (i) issuances of securities in a firm commitment underwritten public offering (excluding a continuous offering pursuant to Rule 415 under the 1933 Xxx) xx (ii) issuances of securities as consideration for a merger, consolidation or purchase of assets, or in connection with any strategic partnership or joint venture (the primary purpose of which is not to raise equity capital), or in connection with the disposition or acquisition of a business, product or license by the Company. The Capital Raising Limitations also shall not apply to the issuance of securities upon exercise or conversion of the Company's options, warrants or other convertible securities outstanding as of the date hereof or to the grant of additional options or warrants, the issuance of additional securities, under any Company stock option or restricted stock plan approved by the stockholders of the Company, issuances of securities to independent contractors or consultants pursuant to written agreements existing on the date hereof, or the issuance of up to 500,000 shares of Common Stock (or securities -13- 14 convertible into or exercisable for Common Stock) to independent contractors or consultants at a price per share of not less eighty-five percent (85%) of the market price of the Common Stock on the date of issuance.

Additional Equity Capital. Subject to the exceptions described ------------------------- below, the Company will not, without the prior written consent of Rose Xxxx Xxxital Xxxx Capital Management, L.P. ("ROSE XXXXRGC"), negotiate or contract with conduct any party to obtain additional equity financing (including debt financing with an equity component) that involves (A) the issuance of Common Stock (whether upon conversion or exercise of a security convertible into or exercisable for Common Stock ("CONVERTIBLE SECURITIES") or otherwise) at a discount to the market price of the Common Stock on the date of issuance thereof or, in the case of Convertible Securities, the date of issuance of such Convertible Securities (taking into account the value of any warrants or options to acquire Common Stock issued in connection therewith) or (B) the issuance of Convertible Securities that are convertible into an indeterminate number of shares of Common Stock or where the issuance price of the Common Stock upon conversion or exercise of such Convertible Securities (including, based upon any conversion, exchange or reset formula) changes at any time after the date of issuance of such Convertible Securities, during the period (the "LOCK-UP PERIOD") beginning on the Closing Date and ending ninety on the date which is three (903) days from months after the date the Registration Statement (as defined in the Registration Rights Agreement) is first declared effective (plus any days in which sales cannot be made thereunder) (the limitations foregoing limitation being referred to in this sentence are collectively referred to herein as the "CAPITAL RAISING LIMITATIONSCapital Raising Limitation"). The Capital Raising Limitations Limitation shall not apply to any transaction involving (i) issuances of securities in a firm commitment underwritten public offering (excluding a continuous offering pursuant to Rule 415 under the 1933 Xxx) xx Act), (ii) issuances of securities as consideration for a merger, consolidation or purchase of assets, or in connection with any strategic partnership or joint venture (the primary purpose of which is not to raise equity capital), or in connection with the disposition or acquisition of a business, product or license by the Company, (iii) issuances of Common Stock and warrants to purchase Common Stock in connection with a bona fide credit facility in an aggregate principal amount equal to at least $15,000,000.00, provided that the exercise price of such warrants is not less than the lower of (A) the Closing Price of the Common Stock on the trading day prior to conversion (but in no event less than $2.59 (subject to adjustment for stock splits, combinations and similar events)) and (B) $6.00, or (v) issuances of securities in connection with an investment in the Company for which more than 50% of the proceeds are provided by an investor engaged as its principal business in the biotechnology, medical device or pharmaceutical industry. The Capital Raising Limitations Limitation also shall not apply to the issuance of securities upon exercise or conversion of the Company's options, warrants or other convertible securities outstanding as of the date hereof or to the grant of additional options or warrants, or the issuance of additional securities, under any Company stock option or restricted stock purchase plan previously in effect or approved by the stockholders a majority of the Company, issuances of securities to independent contractors or consultants pursuant to written agreements existing on the date hereof, or the issuance of up to 500,000 shares of Common Stock (or securities -13- 14 convertible into or exercisable for Common Stock) to independent contractors or consultants at a price per share of not less eighty-five percent (85%) of the market price of the Common Stock on the date of issuance's disinterested directors.

Additional Equity Capital. Subject to the exceptions described below, the Company will not, without the prior written consent of Rose Xxxx Xxxital Management, L.P. ("ROSE XXXX")L.P., negotiate or contract with any party to obtain additional equity financing (including debt financing with an equity component) that involves (A) the issuance of Common Stock (whether upon conversion or exercise of a security convertible into or exercisable for Common Stock ("CONVERTIBLE SECURITIES") or otherwiseStock) at a discount to the market price of the Common Stock on the date of issuance thereof or, in the case of Convertible Securitiesa security convertible into or exercisable for Common Stock, the date of issuance of such Convertible Securities convertible security (taking into account the value of any warrants or options to acquire Common Stock issued in connection therewith) or (B) the issuance of Convertible Securities convertible securities that are convertible into an indeterminate number of shares of Common Stock or where the issuance price of the Common Stock upon conversion or exercise of such Convertible Securities (including, based upon any conversion, exchange or reset formula) changes at any time after the date of issuance of such Convertible Securities, during the period (the "LOCK-UP PERIOD") beginning on the Closing Date with respect to the First Closing and ending ninety one hundred eighty (90180) days from the date the Registration Statement (as defined in the Registration Rights Agreement) is first declared effective (plus any days in which sales cannot be made thereunder) (the limitations referred to in this sentence are collectively referred to as the "CAPITAL RAISING LIMITATIONS"). The Capital Raising Limitations shall not apply to any transaction involving (i) issuances of securities in a firm commitment underwritten public offering (excluding a continuous offering pursuant to Rule 415 under the 1933 Xxx) xx (ii) issuances of securities as consideration for a merger, consolidation or purchase of assets, or in connection with any strategic partnership or joint venture (the primary purpose of which is not to raise equity capital), or in connection with the disposition or acquisition of a business, product or license by the Company. The Capital Raising Limitations also shall not apply to the issuance of securities upon exercise or conversion of the Company's options, warrants or other convertible securities outstanding as of the date hereof or to the grant of additional options or warrants, or the issuance of additional securities, under any Company stock option or restricted stock plan approved by the stockholders of the Company, issuances of securities to independent contractors or consultants pursuant to written agreements existing on the date hereof, or the issuance of up to 500,000 shares of Common Stock (or securities -13- 14 convertible into or exercisable for Common Stock) to independent contractors or consultants at a price per share of not less eighty-five percent (85%) of the market price of the Common Stock on the date of issuance.

Additional Equity Capital. Subject to the exceptions described below, the ------------------------- Company will not, without the prior written consent of Rose Xxxx Xxxital Management, L.P. ("ROSE XXXX")a majority-in-interest of the Buyers, negotiate or contract with any party to obtain additional equity financing (including debt financing with an equity component) that involves (A) the issuance of Common Stock (whether upon conversion or exercise of a security convertible into or exercisable for Common Stock ("CONVERTIBLE SECURITIES") or otherwise) at a discount to the market price of the Common Stock on the date of issuance thereof or, in the case of Convertible Securitiesa security convertible into or exercisable for Common Stock, the date of issuance of such Convertible Securities convertible security (taking into account the value of any warrants or options to acquire Common Stock issued in connection therewith) or (B) the issuance of Convertible Securities convertible securities that are convertible into an indeterminate number of shares of Common Stock or where the issuance price of the Common Stock upon conversion or exercise of such Convertible Securities (including, based upon any conversion, exchange or reset formula"FUTURE OFFERINGS") changes at any time after the date of issuance of such Convertible Securities, during the period (the "LOCK-UP PERIOD") beginning on the Closing Date and ending ninety (90) days from the date the Registration Statement (as defined in the Registration Rights Agreement) is first declared effective (plus any days in which sales cannot be made thereunder) (the limitations referred to in this sentence are collectively referred to as the "CAPITAL RAISING LIMITATIONS"). The Capital Raising Limitations shall not apply to any transaction involving (i) issuances of securities in a firm commitment underwritten public offering (excluding a continuous offering pursuant to Rule 415 under the 1933 Xxx) xx Act), (ii) issuances of securities as consideration for a merger, consolidation or purchase of assets, or in connection with any strategic partnership or joint venture (the primary purpose of which is not to raise equity capital), or in connection with the disposition or acquisition of a business, product or license by the CompanyCompany or (iii) up to an aggregate of Seventy-Five Million Dollars ($75,000,000) in Future Offerings; provided that the Company shall have first delivered to each Buyer, -------- at least seven (7) business days prior to the closing of such Future Offering or Future Offerings, written notice describing the proposed Future Offering, including the definitive terms and conditions thereof, and providing each Buyer an option during the seven (7) business day period following delivery of such notice to purchase its pro rata share (based on the ratio that the number of Preferred Shares purchased by it hereunder bears to the aggregate number of Preferred Shares purchased hereunder) of the securities being offered in the Future Offering on the same terms as contemplated by such Future Offering (in the event the terms and conditions of a proposed Future Offering are amended in any respect after delivery of the notice to the Buyers concerning the proposed Future Offering, the Company shall deliver a new notice to each Buyer describing the amended terms and conditions of the proposed Future Offering and each Buyer thereafter shall have an option during the ten (10) day period following delivery of such new notice to purchase its pro rata share of the securities being offered on the same terms as contemplated by such proposed Future Offering, as amended). The Capital Raising Limitations also shall not apply to the issuance of securities upon exercise or conversion of the Company's options, warrants or other convertible securities outstanding as of the date hereof or to the grant of additional options or warrants, or the issuance of additional securities, under any Company stock option or restricted stock plan approved by the stockholders of the Company, issuances of securities to independent contractors or consultants pursuant to written agreements existing on the date hereof, or the issuance of up to 500,000 shares of Common Stock (or securities -13- 14 convertible into or exercisable for Common Stock) to independent contractors or consultants at a price per share of not less eighty-five percent (85%) of the market price of the Common Stock on the date of issuance.