Common use of PURCHASER RIGHT OF FIRST REFUSAL Clause in Contracts

PURCHASER RIGHT OF FIRST REFUSAL. If the Company proposes to issue or sell, at any time and from time to time before the fifth anniversary of the date of this Agreement, to any Designated Investor (as defined below), shares of Common Stock with aggregate voting power of 5% or more of the Total Voting Power (giving effect to such issuance or sale to such Designated Investor), the Company shall first give the Purchaser written notice of its intention, describing the price per share and general terms of the proposed transfer and the identity of the proposed transferee. The Purchaser or its designee shall have 15 Business Days from the date of receipt of any such notice to agree to purchase all of the shares of Common Stock proposed to be issued or sold for the price per share and upon the general terms specified in the notice by giving written notice to the Company. If the Company proposes any issuance or sale of shares of Common Stock for consideration other than cash, the Purchaser may exercise its right of first refusal and purchase such shares for cash in an amount equal to the fair market value of the proposed non-cash consideration. If the Purchaser does not exercise its right of first refusal, the Company may issue and sell the shares of Common Stock not purchased by the Purchaser at the price and upon the general terms described in the notice provided to the Purchaser, provided that if the Company has not transferred such shares within 120 days after the Purchaser received notice of the Company's intention to sell shares, or entered into a binding agreement within such 120-day period to issue and sell such shares and issued and sold such shares within 120 days after entering into such agreement, the Company shall not thereafter issue and sell any shares without first offering such shares to the Purchaser in the manner provided above. For purposes hereof, "DESIGNATED INVESTOR" means a pharmaceutical manufacturing or distribution company with operations in the field of care covering products specifically used to treat end-stage renal dialysis patients and patients with impaired renal function, such as polycystic disease, anemia, acute renal failure or glomerulonephritis, but not including renal transplantation ("RENAL CARE"). Notwithstanding the foregoing, however, the Purchaser's rights under this SECTION 5(h) shall not apply in the case of a sale of stock by the Company as part of a collaborative relationship involving research, development, manufacturing or marketing activities (a "PROPOSED COLLABORATION") unless the primary focus of the Proposed Collaboration is Renal Care, in which case the Purchaser's rights under this SECTION 5(h) will apply only if the Purchaser, through exercise of its right of first negotiation under Section 2.5 or Section 2.6 of the License Agreement, enters into a collaborative agreement with the Company with respect to the Proposed Collaboration, in which case the Purchaser shall have the right pursuant to this SECTION 5(h) to purchase any stock proposed to be sold as part of that Proposed Collaboration.

PURCHASER RIGHT OF FIRST REFUSAL. If a third party seeks to use SELLER for supply of devices for sublingual delivery of a specific drug product (other than Off-The-Shelf-Devices), SELLER will grant PURCHASER a right of first refusal with respect to such drug product in accordance with the Company proposes to issue or sell, at any time and from time to time before the fifth anniversary of the date terms of this AgreementParagraph 6. When SELLER becomes aware of a request for supply of such devices for sublingual delivery of drug product (such request, to any Designated Investor (as defined belowa “Proposed Supply Request” and such drug product, a “Proposed Drug Product”), shares SELLER shall promptly notify PURCHASER in writing of Common Stock such Proposed Supply Request (the “ROFR Notice”) and may not commit to supplying such third party with aggregate voting power of 5% or more of the Total Voting Power (giving effect such sublingual delivery device with respect to such issuance Proposed Drug Product until PURCHASER has declined or sale failed to such Designated Investor), the Company shall first give the Purchaser written notice of its intention, describing the price per share and general terms of the proposed transfer and the identity of the proposed transferee. The Purchaser or its designee shall have 15 Business Days from the date of receipt of any such notice to agree to purchase all of the shares of Common Stock proposed to be issued or sold for the price per share and upon the general terms specified in the notice by giving written notice to the Company. If the Company proposes any issuance or sale of shares of Common Stock for consideration other than cash, the Purchaser may exercise its right of first refusal with respect to such Proposed Drug Product within the allotted exercise period below. For clarity, (a) the ROFR Notice does not apply to Off-The-Shelf-Devices; and purchase such shares for cash in an amount equal (b) the ROFR Notice is only required to identify the fair market value Proposed Drug Product and not any other material terms of the proposed non-cash considerationProposed Supply Request or the identity of the applicable third party. If PURCHASER shall have [...***...] days from its receipt of the Purchaser does not ROFR Notice to exercise its right of first refusal, the Company may issue and sell the shares of Common Stock not purchased by the Purchaser at the price and upon the general terms described in the notice provided refusal with respect to the Purchaser, provided that if the Company has not transferred such shares within 120 days after the Purchaser received notice of the Company's intention to sell shares, or entered into a binding agreement within such 120-day period to issue and sell such shares and issued and sold such shares within 120 days after entering into such agreement, the Company shall not thereafter issue and sell any shares without first offering such shares to the Purchaser in the manner provided aboveapplicable Proposed Drug Product. For purposes hereof, "DESIGNATED INVESTOR" means a pharmaceutical manufacturing or distribution company with operations in the field of care covering products specifically used to treat end-stage renal dialysis patients and patients with impaired renal function, such as polycystic disease, anemia, acute renal failure or glomerulonephritis, but not including renal transplantation ("RENAL CARE"). Notwithstanding the foregoing, however, the Purchaser's rights under this SECTION 5(h) shall not apply in the case of a sale of stock by the Company as part of a collaborative relationship involving research, development, manufacturing or marketing activities (a "PROPOSED COLLABORATION") unless the primary focus of the Proposed Collaboration is Renal Care, in which case the Purchaser's rights under this SECTION 5(h) will apply only if the Purchaser, through exercise of If PURCHASER exercises its right of first negotiation under Section 2.5 or Section 2.6 of the License Agreement, enters into a collaborative agreement with the Company refusal with respect to the applicable Proposed CollaborationDrug Product, the Proposed Drug Product shall be deemed a New Molecule and will be subject to Paragraphs 5(b)(ii) and 5(c) above. If PURCHASER notifies SELLER in which case writing that it does not intend to exercise its right of first refusal with respect to such Proposed Drug Product or the Purchaser shall have applicable […***…] day period has lapsed and PURCHASER has not notified SELLER of its intent to (or not to) exercise its right of first refusal with respect to such Proposed Drug Product, then (a) the right pursuant of first refusal with respect to this SECTION 5(hsuch Proposed Drug Product shall lapse, (b) the applicable Drug Product shall not be deemed a New Molecule (i.e., no Exclusivity will be granted to purchase any stock proposed PURCHASER with respect to be sold as part such Drug Product) and (c) SELLER may enter into agreements with third parties with respect to the supply of that devices for sublingual delivery of the Proposed CollaborationDrug Product.

PURCHASER RIGHT OF FIRST REFUSAL. If the Company proposes to issue or sell, at any time and from time to time before the fifth anniversary of the date of this Agreement, to any Designated Investor (as defined below), shares of Common Stock with aggregate voting power of 5% or more of the Total Voting Power (giving effect to such issuance or sale to such Designated Investor), the Company shall first give the Purchaser written notice of its intention, describing the price per share and general terms of the proposed transfer and the identity of the proposed transferee. The Purchaser or its designee shall have 15 Business Days from the date of receipt of any such notice to agree to purchase all of the shares of Common Stock proposed to be issued or sold for the price per share and upon the general terms specified in the notice by giving written notice to the Company. If the Company proposes any issuance or sale of shares of Common Stock for consideration other than cash, the Purchaser may exercise its right of first refusal and purchase such shares for cash in an amount equal to the fair market value of the proposed non-cash consideration. If the Purchaser does not exercise its right of first refusal, the Company may issue and sell the shares of Common Stock not purchased by the Purchaser at the price and upon the general terms described in the notice provided to the Purchaser, provided that if the Company has not transferred such shares within 120 days after the Purchaser received notice of the Company's intention to sell shares, or entered into a binding agreement within such 120-day period to issue and sell such shares and issued and sold such shares within 120 days after entering into such agreement, the Company shall not thereafter issue and sell any shares without first offering such shares to the Purchaser in the manner provided above. For purposes hereof, "DESIGNATED INVESTOR" means a pharmaceutical manufacturing or distribution company with operations in the field of care covering products specifically used to treat end-stage renal dialysis patients and patients with impaired renal function, such as polycystic disease, anemia, acute renal failure or glomerulonephritis, but not including renal transplantation ("RENAL CARE"). Notwithstanding the foregoing, however, the Purchaser's rights under this SECTION Section 5(h) shall not apply in the case of a sale of stock by the Company as part of a collaborative relationship involving research, development, manufacturing or marketing activities (a "PROPOSED COLLABORATION") unless the primary focus of the Proposed Collaboration is Renal Care, in which case the Purchaser's rights under this SECTION Section 5(h) will apply only if the Purchaser, through exercise of its right of first negotiation under Section 2.5 or Section 2.6 of the License Agreement, enters into a collaborative agreement with the Company with respect to the Proposed Collaboration, in which case the Purchaser shall have the right pursuant to this SECTION Section 5(h) to purchase any stock proposed to be sold as part of that Proposed Collaboration.

PURCHASER RIGHT OF FIRST REFUSAL. If the Company proposes to issue or sellOriginator and Seller hereby covenant with Purchaser that, at any time and from time to time before the fifth anniversary of the date hereof until the first to occur of (a) the Program Termination Date, (b) the date on which an event occurs which relieves the Purchaser from making Purchases hereunder and the Purchaser is not making Purchases hereunder, (c) the date on which an event occurs which relieves Hellxx Xxxancial, Inc. from making Advances under the Warehouse Facility and Hellxx Xxxancial, Inc. is not making Advances thereunder, or (d) an Event of Termination under Section 8.1 of this Agreement, to any Designated Investor (as defined below)Purchaser shall have, shares of Common Stock with aggregate voting power of 5% or more of the Total Voting Power (giving effect to such issuance or sale to such Designated Investor)and Purchaser is hereby granted, the Company right and option, subject to the terms set forth below (the "PURCHASE OPTION") to purchase Receivables and related Assets (which for this purpose shall first give obligate the Originator and Seller, as well as any Affiliate thereof, to disclose to Purchaser written notice all resorts developed by the Originator and Seller or any Affiliate thereof in order to provide Purchaser the opportunity to make a determination whether such resort may be an Additional Resort). Purchaser shall notify the Originator and Seller within forty-five days of its intention, describing the price per share and general terms receipt of the proposed transfer and the identity of the proposed transfereesatisfactory information with respect to a resort whether such resort qualifies as an Additional Resort. The Purchase Option may be exercised or not exercised in Purchaser's sole discretion. If Purchaser or its designee declines to exercise the Purchase Option, Purchaser shall have 15 Business Days from the date of receipt of any such notice to agree to purchase all of the shares of Common Stock proposed to be issued or sold for the price per share and upon the general terms specified in the notice by giving written notice to the Company. If the Company proposes any issuance or sale of shares of Common Stock for consideration other than cash, the Purchaser may exercise its right of first refusal and purchase such shares for cash in an amount equal to the fair market value of the proposed non-cash consideration. If the Purchaser does not exercise its right of first refusal, the Company may issue and sell the shares of Common Stock not purchased by the Purchaser at the price and upon the general terms described in the notice provided to the Purchaser, provided that if the Company has not transferred such shares within 120 days after the Purchaser received notice of the Company's intention to sell shares, or entered into a binding agreement within such 120-day period to issue and sell such shares and issued and sold such shares within 120 days after entering into such agreement, the Company shall not thereafter issue and sell any shares without first offering such shares to the Purchaser in the manner provided above. For purposes hereof, "DESIGNATED INVESTOR" means a pharmaceutical manufacturing or distribution company with operations in the field of care covering products specifically used to treat end-stage renal dialysis patients and patients with impaired renal function, such as polycystic disease, anemia, acute renal failure or glomerulonephritis, but not including renal transplantation ("RENAL CARE"). Notwithstanding the foregoing, however, the Purchaser's rights under this SECTION 5(h) shall not apply in the case of a sale of stock by the Company as part of a collaborative relationship involving research, development, manufacturing or marketing activities (a "PROPOSED COLLABORATION") unless the primary focus of the Proposed Collaboration is Renal Care, in which case the Purchaser's rights under this SECTION 5(h) will apply only if the Purchaser, through exercise of its right of first negotiation under Section 2.5 or Section 2.6 of the License Agreement, enters into a collaborative agreement with the Company no further Purchase Option with respect to the Proposed CollaborationReceivables. Notwithstanding anything contained herein to the contrary, in which case the Purchaser shall have the right it is expressly agreed and understood that any purchase pursuant to the Purchase Option shall be subject to approval by Purchaser's credit committee in accordance with Purchaser's standard credit guidelines and it is further expressly understood and agreed that Purchaser is under no obligation to exercise the Purchase Option and that nothing in this SECTION 5(h) Section 12.13 shall be deemed or construed to purchase create any stock proposed to be sold as part of that Proposed Collaborationsuch obligation.