Common use of Second Closing Clause in Contracts

Second Closing. On any business day during the period beginning on the First Closing Date and ending on June 10, 2019, and upon the terms and subject to the conditions set forth herein, the Purchasers shall have the right and the option, but not the obligation (the “Purchase Right”), by delivery to the Company of a purchase notice signed by each Purchaser (the “Purchase Notice”), to require the Company to issue and sell to each Purchaser, in which case each Purchaser shall purchase, severally and not jointly, (a) the respective number of Shares set forth opposite the names of the Purchasers under the heading “Number of Shares to be Purchased in the Second Closing” on Exhibit A attached hereto (the “Second Closing Shares”) and (b) Common Warrants to purchase 0.25 shares of Common Stock for every one Share purchased in the Second Closing (for the avoidance of doubt, the respective numbers of Common Warrant Shares issuable upon exercise of the Common Warrants to be purchased at the Second Closing are set forth opposite the names of the Purchasers under the heading “Number of Common Warrant Shares Underlying Common Warrants Purchased in the Second Closing” on Exhibit A attached hereto) (the “Second Closing Common Warrants”), at a price per Share and accompanying Common Warrant equal to the Per Unit Purchase Price, subject to the purchase rights set forth in Section 8.13. The Common Warrants shall have an exercise price per Common Warrant Share equal to the Warrant Exercise Price.

Second Closing. On any business day during the period beginning on the First Closing Date and ending on June 10, 2019, and upon Upon the terms and subject to the conditions set forth hereinof this Agreement, at the Purchasers shall have the right Second Closing, each of CMBP II, CMBCV and the option55th Street (collectively, but not the obligation (the “Purchase Right”), by delivery thx "Xxxxxxxent Purchasers") hereby agrees to purchase from the Company of a purchase notice signed by each Purchaser (the “Purchase Notice”), to require the Company to issue and sell to each Purchaser, in which case each Purchaser shall purchase, severally and not jointly, (a) the respective number of Shares and warrants to purchase Shares in the form of Exhibit B hereto (the "Subsequent Warrants" and, collectively with the Initial Warrants, the "Warrants") set forth opposite its name on Schedule 2.2(b)(ii), and the names Company hereby agrees to issue, sell and deliver to the Subsequent Purchasers against payment of the Purchasers under the heading “Number purchase price in immediately available funds an aggregate number of Shares determined in accordance with the next succeeding sentence (the "Subsequent New Shares " and, collectively with the Initial New Shares, the "New Shares") and Warrants to be Purchased purchase an aggregate number of Shares determined in accordance with the second succeeding sentence, in each case, free and clear of all Encumbrances, for an aggregate purchase price of not less than $50.0 million and not greater than $75.0 million (the "Subsequent New Shares Purchase Price" and, collectively with the Initial New Shares Purchase Price, the "New Shares Purchase Price"), as determined in accordance with Section 5.3(iv) of the Stockholders Agreement. At the Second Closing” on Exhibit A attached hereto (, the “Company will issue, sell and deliver to the Subsequent Purchasers and the Subsequent Purchasers will purchase from the Company an aggregate number of Subsequent New Shares equal to the quotient of the Subsequent New Shares Purchase Price divided by $16.00. At the Second Closing Shares”) Closing, the Company will issue, sell and (b) Common deliver to the Subsequent Purchasers and the Subsequent Purchasers will purchase from the Company Subsequent Warrants to purchase 0.25 shares an aggregate number of Common Stock for every one Share purchased Shares (without giving effect to any adjustment as provided in the Second Closing (for the avoidance of doubt, the respective numbers of Common Warrant Shares issuable upon exercise of the Common Warrants to be purchased at the Second Closing are set forth opposite the names of the Purchasers under the heading “Number of Common Warrant Shares Underlying Common Warrants Purchased in the Second Closing” on Exhibit A attached heretoSubsequent Warrants) (the “Second Closing Common Warrants”), at a price per Share and accompanying Common Warrant equal to the Per Unit product of the Subsequent New Shares Purchase Price, subject to the purchase rights set forth in Section 8.13Price multiplied by 0.0045. The Common purchase by the Subsequent Purchasers of the Subsequent New Shares and the Subsequent Warrants shall have an exercise price per Common Warrant Share equal is hereinafter collectively referred to as the Warrant Exercise Price"Subsequent Purchase".

Second Closing. On any business day during the period beginning on the First Closing Date and ending on June 10, 2019, and upon the terms and subject to the conditions set forth herein, the Purchasers shall have the right and the option, but not the obligation (the “Purchase Right”), by delivery to the Company of a purchase notice signed by each Purchaser (the “Purchase Notice”), to require the Company to issue and sell to each Purchaser, in which case each Purchaser shall purchase, severally and not jointly, (a) If at any time on or prior to September 30, 2024: (i) the respective number of Shares set forth opposite Company publicly announces the names achievement of the Purchasers under Pivotal Trial Milestone and its intention to submit a pre-market approval application for Niyad to the heading “Number of Shares FDA, or (ii) the Company receives written notice from a Purchaser waiving subsection (i) above and desires to be Purchased in effect the Second Closing” on Exhibit A attached hereto Closing (as to the Subscription Amount of such waiving Purchaser only), then the Company will promptly distribute (and in any event within two (2) Trading Days of such public announcement or receipt of such written notice) to each Purchaser a notice identifying the date of the Second Closing (the “Second Closing SharesNotice”) and ). (b) Common Warrants On or prior to purchase 0.25 shares of Common Stock for every one Share purchased the Second Closing Date, the Company shall deliver or cause to be delivered to each Purchaser participating in the Second Closing (the “Participating Purchaser”) the following: (i) the Company shall have provided each Participating Purchaser with the Company’s wire instructions; (ii) a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to establish via the direct registration system a book-entry notation for that number of Shares equal to such Participating Purchaser’s Second Closing Subscription Amount applicable to the avoidance Shares divided by the Per Share Purchase Price and registered in the name of doubt, such Purchaser (minus the respective numbers number of shares of Common Warrant Shares Stock issuable upon exercise of such Purchaser’s Pre-Funded Warrants, if applicable); and (iii) if applicable, for each Participating Purchaser of Pre-Funded Warrants pursuant to Section 2.1, a Pre-Funded Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to the portion of such Participating Purchaser’s Second Closing Subscription Amount applicable to Pre-Funded Warrants divided by the Per Share Purchase Price minus $0.001, with an exercise price equal to be purchased at $0.001 per share of Common Stock, subject to adjustment therein. (c) On or prior to the Second Closing are set forth opposite Date, each Participating Purchaser shall deliver or cause to be delivered to the names of the Purchasers under the heading “Number of Common Warrant Shares Underlying Common Warrants Purchased in the Second Closing” on Exhibit A attached hereto) (the “Company, such Participating Purchaser’s Second Closing Common Warrants”), at a price per Share and accompanying Common Warrant equal Subscription Amount by wire transfer to the Per Unit Purchase Price, subject to account specified in writing by the purchase rights set forth in Section 8.13. The Common Warrants shall have an exercise price per Common Warrant Share equal to the Warrant Exercise PriceCompany.

Second Closing. On any business day during the period beginning on the First Closing Date and ending on June 10, 2019, and upon the terms and subject to the conditions set forth herein, the Purchasers shall have the right and the option, but not the obligation (the “Purchase Right”), by delivery Subject to the Company of a purchase notice signed by each Purchaser obtaining Stockholder Approval (the “Purchase Notice”as defined in Section 4.7 herein), to require the Company to issue and sell to each Purchaser, in which case each Purchaser there shall purchase, severally and not jointly, (a) the respective number of Shares set forth opposite the names of the Purchasers under the heading “Number of Shares to be Purchased in the Second Closing” on Exhibit A attached hereto an additional closing (the “Second Closing”), which shall take place immediately following the Stockholder Meeting (as defined in Section 4.7 herein). The date on which the Second Closing Shares”occurs is hereinafter referred to as the “Second Closing Date.” The Second Closing will be deemed to occur at the offices of Mxxxxx Song LLP, 700 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The Initial Closing and the Second Closing are collectivelty referred to herein as the “Closings.” At the Second Closing: (A) each of the conditions to the Second Closing described in Section 5.4 and Section 5.5 shall have been satisfied or waived as specified therein, (bB) Common Warrants to purchase 0.25 each Investor shall have converted their respective Debentures, the number of shares of Common Stock for every one Share purchased to be received by each Investor upon such exercise is set forth opposite such Investor’s name in column (3) of Schedule A hereto under the heading Second Closing Closing, (for C) the avoidance of doubt, the Company shall have delivered to each Investor their respective numbers of Common Warrant Shares issuable upon exercise portion of the Common Warrants Cash Amount payable to be purchased each Investor at the Second Closing are in the amount set forth opposite the names such Investor’s name in column (6) of the Purchasers Schedule A hereto under the heading “Number Second Closing; provided, however, in the event that the Second Closing takes place after March 31, 2006, the portion of the Cash Amount payable by the Company to each Investor at the Second Closing shall be reduced in an amount equal to the Interest paid to the Investor on March 31, 2006 pursuant to the terms of the Debentures, (D) the Company shall have delivered to each Investor their respective portion of the Registrable Common Warrant Shares Underlying Common Warrants Purchased in issuable to each Investor at the Second Closing” on Exhibit A attached hereto) (the “Second Closing , which number of shares of Common Warrants”), at a price per Share and accompanying Common Warrant equal to the Per Unit Purchase Price, subject to the purchase rights Stock is set forth opposite such Investor’s name in Section 8.13. The Common Warrants column (4) of Schedule A hereto under the heading Second Closing, and (E) the Company shall have an exercise price per delivered to each Investor a Warrant to purchase the number of shares of Common Warrant Share equal to Stock set forth opposite such Investor’s name in column (5) of Schedule A hereto under the Warrant Exercise Priceheading Second Closing.

Second Closing. On (a) If at any business time within 18 months following the Initial Closing the 10-day volume weighted average price of the Company’s Common Stock (as quoted on Nasdaq and as calculated by Bloomberg) should be at least $1.125 per share (or such lesser amount as may be approved unanimously by the Purchasers) (which amount shall be appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction) with aggregate trading volume during the same 10-day period beginning of at least $25 million (or such lesser amount as may be approved unanimously by the Purchasers), then the Company shall promptly (and in any event within two Trading Days) distribute to the Purchaser a Second Closing Notice. (b) Following the Company’s distribution of the Second Closing Notice (as defined below), at the Second Closing (which, for the avoidance of doubt, shall occur on the First Second Closing Date and ending on June 10Date), 2019, and upon the terms and subject to the conditions set forth herein, the Purchasers shall have the right and the option, but not the obligation (the “Purchase Right”), by delivery to the Company of a purchase notice signed by each Purchaser (the “Purchase Notice”), to require the Company hereby agrees to issue and sell to each Purchaser, in which case and each Purchaser shall purchaseagrees to purchase from the Company, severally and not jointly, (a) the respective number of Preferred Shares set forth opposite the names of the Purchasers under the heading “Number of Shares to be Purchased in the Second Closing” on Exhibit A attached hereto (the “Second Closing Preferred Shares”) set forth opposite such Purchaser’s name on Exhibit C hereto, at a purchase price equal to the Second Closing Purchase Price, each of which shall be appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction. The sales made at the Second Closing shall be made on the terms and conditions set forth in this Agreement, provided that (i) the representations and warranties of the Company set forth in Section ‎3.1 hereof shall speak only as of the Initial Closing Date, and (bii) Common Warrants to purchase 0.25 shares the representations and warranties of Common Stock for every one Share purchased the Purchasers participating in the Second Closing set forth in Section ‎3.2 hereof shall speak as of the Second Closing Date. (c) At the Second Closing, each Purchaser shall deliver to the Company via wire transfer of immediately available funds equal to the purchase price for the avoidance of doubtSecond Closing Shares and the Company shall deliver to each Purchaser certificate(s) or book-entry shares representing its respective Second Closing Shares. (d) In addition to the foregoing conditions, the respective numbers of Common Warrant Shares issuable upon exercise obligations of the Common Warrants to be purchased at Company in connection with the Second Closing are set forth opposite subject to the names following conditions being met: (i) the accuracy in all material respects on the Second Closing Date, as applicable, of the representations and warranties contained herein (unless made as of a specified date therein) of the Purchasers; and (ii) all obligations, covenants and agreements of the Purchasers under the heading “Number of Common Warrant Shares Underlying Common Warrants Purchased in required to be performed at or prior to the Second Closing” on Exhibit A attached heretoClosing Date shall have been performed in all material respects; (e) (In addition to the “foregoing conditions, the obligations of the Purchasers in connection with the Second Closing Common Warrants”), at a price per Share and accompanying Common Warrant equal to the Per Unit Purchase Price, are subject to the purchase rights set forth following conditions being met (to the extent that any such conditions have not been waived on a Purchaser-by-Purchaser basis): (i) the accuracy in Section 8.13. The Common Warrants all material respects on the Second Closing Date of the representations and warranties contained herein (unless made as of a specified date therein) of the Company; (ii) all obligations, covenants and agreements of the Company required to be performed at or prior to the Second Closing Date shall have an exercise price per Common Warrant Share equal been performed in all material respects; (iii) Purchasers shall have received a Secretary’s Certificate, dated as of the Second Closing Date in form and substance reasonably satisfactory to the Warrant Exercise PricePurchasers; (iv) Purchasers shall have received an Officer’s Certificate, dated as of the Second Closing Date in form and substance reasonably satisfactory to the Purchasers; (v) Purchasers shall have received an opinion of Company Counsel, dated as of the Second Closing Date in a form reasonably satisfactory to the Purchasers; (vi) Purchasers shall have timely received the Second Closing Notice; (vii) the Required Stockholder Approval shall have been obtained and the Charter Amendment shall have been filed with the Delaware Secretary of State; (viii) the Mandatory Registration Statement shall have been filed and declared effective and the prospectus therein shall be current; and (ix) No Material Adverse Effect has occurred.

Second Closing. On any business day during At the period beginning on the First Closing Date and ending on June 10sole option of each Purchaser, 2019, and upon the terms and subject to the terms and conditions set forth herein, in Section 4.2 the Purchasers closing and sale of up to (as shall have the right and the option, but not the obligation (the “Purchase Right”), be specified by delivery such Purchaser prior to the Company Second Closing Date) an additional 4,300 shares of a Preferred Stock for an aggregate purchase notice signed by each Purchaser (the “Purchase Notice”), price of $4,300,000 and Warrants for an aggregate of up to require the Company to issue and sell to each Purchaser, in which case each Purchaser shall purchase, severally and not jointly, (a) the respective such number of Shares set forth opposite the names of the Purchasers under the heading “Number of Shares to be Purchased in the Second Closing” on Exhibit A attached hereto (the “Second Closing Shares”) and (b) Common Warrants to purchase 0.25 shares of Common Stock equal to 4,300,000 divided by $4.00 shall take place on the later of December 1, 2000 or 30 days after the effectiveness of the Registration Statement registering for every one Share purchased resale the shares of Common Stock underlying the Preferred Stock from the First Closing, in the same manner as the First Closing (the "Second Closing Date"); provided that in no case shall the Second Closing take place unless and until the conditions listed in Section 4.2 have been satisfied or waived by the appropriate party. At the Second Closing: (for i) Each Purchaser electing to purchase additional shares of Preferred Stock shall deliver, as directed by the avoidance of doubtCompany, the respective numbers of Common Warrant Shares issuable upon exercise its portion of the Common Warrants purchase price as set forth next to its name on a schedule similar to Schedule I (the "Second Closing Schedule"), to be purchased at delivered to the Company by the Purchasers two days before the Second Closing are Date, in United States dollars in immediately available funds to an account or accounts designated in writing by the Company; (ii) The Company shall deliver a Preferred Stock certificate(s) representing the number of shares of Preferred Stock purchased by each Purchaser as set forth opposite next to such Purchaser's name on the names Second Closing Schedule, registered in the name of such Purchaser, each in form satisfactory to the Purchaser and issued pursuant to the Certificate of Designation with a Conversion Price equal to $4.00; (iii) The Company shall deliver a Warrant(s), in the form of Exhibit B hereto and with the Exercise Price equal to $4.00, representing the number of shares of Common Stock as set forth next to such Purchaser's name on the Second Closing Schedule, registered in the name of such Purchaser; and (iv) The parties shall execute and deliver each of the Purchasers under the heading “Number of Common Warrant Shares Underlying Common Warrants Purchased in the Second Closing” on Exhibit A attached hereto) (the “Second Closing Common Warrants”), at a price per Share and accompanying Common Warrant equal documents referred to the Per Unit Purchase Price, subject to the purchase rights set forth in Section 8.134.2(b). The Common Warrants shall have an exercise price per Common Warrant Share equal to the Warrant Exercise Price.REPRESENTATIONS AND WARRANTIES

Second Closing. On any business day during At the period beginning on the First Closing Date and ending on June 10sole option of each Purchaser, 2019, and upon the terms and subject to the terms and conditions set forth herein, in Section 4.2 the Purchasers closing and sale of up to (as shall have the right and the option, but not the obligation (the “Purchase Right”), be specified by delivery such Purchaser prior to the Company Second Closing Date) an additional 4,300 shares of a Preferred Stock for an aggregate purchase notice signed by each Purchaser (the “Purchase Notice”), price of $4,300,000 and Warrants for an aggregate of up to require the Company to issue and sell to each Purchaser, in which case each Purchaser shall purchase, severally and not jointly, (a) the respective such number of Shares set forth opposite the names of the Purchasers under the heading “Number of Shares to be Purchased in the Second Closing” on Exhibit A attached hereto (the “Second Closing Shares”) and (b) Common Warrants to purchase 0.25 shares of Common Stock equal to 4,300,000 divided by $4.00 shall take place on the later of December 1, 2000 or 30 days after the effectiveness of the Registration Statement registering for every one Share purchased resale the shares of Common Stock underlying the Preferred Stock from the First Closing, in the same manner as the First Closing (the "Second Closing Date"); provided that in no case shall the Second Closing take place unless and until the conditions listed in Section 4.2 have been satisfied or waived by the appropriate party. At the Second Closing: (for i) Each Purchaser electing to purchase additional shares of Preferred Stock shall deliver, as directed by the avoidance of doubtCompany, the respective numbers of Common Warrant Shares issuable upon exercise its portion of the Common Warrants purchase price as set forth next to its name on a schedule similar to Schedule I (the "Second Closing Schedule"), to be purchased at delivered to the Company by the Purchasers two days before the Second Closing are Date, in United States dollars in immediately available funds to an account or accounts designated in writing by the Company; (ii) The Company shall deliver a Preferred Stock certificate(s) representing the number of shares of Preferred Stock purchased by each Purchaser as set forth opposite next to such Purchaser's name on the names Second Closing Schedule, registered in the name of such Purchaser, each in form satisfactory to the Purchaser and issued pursuant to the Certificate of Designation with a Conversion Price equal to $4.00; (iii) The Company shall deliver a Warrant(s), in the form of Exhibit B hereto and with the Exercise Price equal to $4.00, representing the number of shares of Common Stock as set forth next to such Purchaser's name on the Second Closing Schedule, registered in the name of such Purchaser; and (iv) The parties shall execute and deliver each of the Purchasers under the heading “Number of Common Warrant Shares Underlying Common Warrants Purchased in the Second Closing” on Exhibit A attached hereto) (the “Second Closing Common Warrants”), at a price per Share and accompanying Common Warrant equal documents referred to the Per Unit Purchase Price, subject to the purchase rights set forth in Section 8.13. The Common Warrants shall have an exercise price per Common Warrant Share equal to the Warrant Exercise Price4.2(b).