Third Closing (a) If (i) the Company publicly announces the Third Closing Milestone Event and following such announcement the average VWAP of the Common Stock for each of the immediately subsequent five (5) Trading Days is at least $0.7325 per share (as adjusted for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement and prior to the Third Closing Date (which is 125% of the Per Share Purchase Price)) or (ii) the Company receives written notice from a Purchaser waiving subsection (i) above and desires to effect the Third 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 and achievement of (i) above or receipt of such written notice pursuant to (ii) above) to each Purchaser a notice identifying the date of the Third Closing. If Company terminates the Niyad NEPHRO CRRT study then the right of a Purchaser to request a Third Closing shall terminate, and the Company shall be under no obligation to sell and issue any further Securities to the Purchasers. (b) On or prior to the Third Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following: (i) the Company shall have provided each 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 Purchaser’s Third Closing Subscription Amount applicable to the Shares divided by the Per Share Purchase Price and registered in the name of such Purchaser (minus the number of shares of Common Stock issuable upon exercise of such Purchaser’s Pre-Funded Warrants, if applicable); (iii) if applicable, for each 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 Purchaser’s Third Closing Subscription Amount applicable to Pre-Funded Warrants divided by the Per Share Purchase Price minus $0.001, with an exercise price equal to $0.001 per share of Common Stock, subject to adjustment therein; (iv) a legal opinion of Company Counsel, directed to the Purchasers, in form and substance reasonably acceptable to the Purchasers; and (c) On or prior to the Third Closing Date, each Purchaser shall deliver or cause to be delivered to the Company such Purchaser’s Third Closing Subscription Amount by wire transfer to the account specified in writing by the Company.
Closings Each Closing shall take place on the Advance Settlement Date in accordance with the procedures set forth below. In connection with each Closing, the Company and the Investor shall fulfill each of its obligations as set forth below: (a) Within one (1) Trading Day after the expiration of the Pricing Period applicable with respect to an Advance Notice, the Investor shall deliver to the Company a written document (each a “Settlement Document”) setting forth: (i) the amount of the Advance (taking into account any adjustments pursuant to Section 2.1 above); (ii) the Purchase Price; (iii) the Market Price (as supported by a report by Bloomberg L.P. indicating the VWAP for each of the Trading Days during the Pricing Period); and (iv) the number of Shares to be issued and subscribed for in connection with the applicable Advance (which in no event will be greater than the Ownership Limitation or the Registration Limitation), in each case taking into account the terms and conditions of this Agreement. The Settlement Document shall be in the form attached hereto as Exhibit “B”. (b) Upon receipt of the Settlement Document with respect to each Advance, the Company shall, by promptly (and in any event not later than one (1) Trading Day after receipt) signing the Settlement Document and returning it to the Investor, confirm that it has obtained all permits and qualifications, if any, required for the issuance and transfer of the Shares applicable to such Advance, or shall have the availability of exemptions therefrom, and that the sale and issuance of such Shares shall be legally permitted by all laws and regulations to which the Company is subject. Execution of the Settlement Document by the Company shall also be deemed a representation by the Company that all conditions to an Advance under Article VII have been fully satisfied in all material respects as of each Condition Satisfaction Date. (c) On each Advance Settlement Date, the Company will, or will cause its transfer agent to, electronically transfer such number of Shares registered in the name of the Investor as shall equal: (i) the amount of the Advance specified in such Advance Notice and confirmed in the Settlement Document signed by the Company (as may be reduced according to the terms of this Agreement); divided by (ii) the Purchase Price, by crediting the Investor’s account or its designee’s account at the Depository Trust Company through its Deposit Withdrawal Agent Commission System or by such other means of delivery as may be mutually agreed upon by the parties hereto (which in all cases shall be freely tradable, registered shares in good deliverable form, covered by an effective Registration Statement pursuant to which the Investor is permitted to resell such Shares) against payment of the Purchase Price in same day funds to an account designated by the Company. In the event the Shares cannot be delivered through the Deposit Withdrawal Agent Commission System, then the Company shall cause its transfer agent, on each Advance Settlement Date, to issue and surrender to a common carrier for overnight delivery to the Investor, certificates, registered in the name of the Investor or its designees, representing the Shares applicable to such Advance. No fractional shares shall be issued, and any fractional amounts shall be rounded to the next higher whole number of Shares. Any certificates evidencing Shares delivered pursuant hereto shall be free of restrictive legends. (d) On or prior to the Advance Settlement Date, each of the Company and the Investor shall deliver to the other, as applicable, all documents, instruments and writings required to be delivered by either of them pursuant to this Agreement in order to implement and effect the transactions contemplated herein.
Second Closing The second closing (the “Second Closing” and together with the Initial Closing, each a “Closing”) of the transactions contemplated hereby shall be held at the offices of Fenwick & West LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ within one business day following the date on which the last of the conditions set forth in Articles 6 and 7 (including the conditions described in Section 6(p)) have been satisfied or waived in accordance with this Agreement (such date, the “Second Closing Date” and together with the Initial Closing Date, each a “Closing Date”), or at such other time and place as the Company and the Investors mutually agree upon. At the Second Closing, each Investor shall pay the Company the applicable Total Purchase Price by Exchange of the aggregate principle amount of the Outstanding Convertible Notes as set forth next to such Investor’s name on Schedule I-B hereto. At the Second Closing, the Company shall deliver to each Investor a single stock certificate representing the number of Shares purchased by such Investor at the Second Closing, as set forth next to such Investor’s name on Schedule I-B hereto, such stock certificate to be registered in the name of such Investor, or in such nominee’s or nominees’ name(s) as designated by such Investor in writing in the Investor Suitability Questionnaire, against payment of the purchase price therefor by the Exchange of the aggregate principle amount of the Outstanding Convertible Notes being Exchanged by such applicable Investor at the Second Closing. Each Investor agrees that each such Outstanding Convertible Note or Notes held by such Investor and set forth next to such Investor’s name on Schedule I-B is cancelled as of the Second Closing and all principal and interest outstanding thereunder shall be Exchanged as reflected on Schedule I-B as of the Second Closing Date; provided that to the extent only a portion of the principal and interest outstanding thereunder shall be converted or exchanged as reflected on Schedule I-B as of the Second Closing Date, then the Company shall issue a new convertible promissory note to such Investor reflecting the remaining principal and interest outstanding under such Outstanding Convertible Note or Notes after giving effect to the Exchange contemplated hereby.
Subsequent Closings Subject to the satisfaction (or waiver by the Agent in its sole discretion) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), each applicable Lender hereby promises to purchase from the Borrower an aggregate principal amount of additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing (including, without limitation, at the Closing), such Lender’s Commitment. Subject to the satisfaction (or waiver by the Agent) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Subsequent Closing Note Purchase Price”) of the Notes to be purchased by such Lenders at such Subsequent Closing, the Borrower shall issue and sell to each Lender on the applicable Subsequent Closing Date (as defined below), and each Lender severally, but not jointly, agrees to purchase from the Borrower on such Subsequent Closing Date, a principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing (each a “Subsequent Closing”) of any of the transactions contemplated by this Section 3.2 and the issuance of the additional Notes to be issued to the Lenders at such Subsequent Closing shall occur at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. With respect to each Subsequent Closing, the date and time of such Subsequent Closing (the “Subsequent Closing Date”) shall be 10:00 a.m., Chicago time, on the date on which the conditions set forth in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or such later date as is mutually agreed to by the Borrower and the Agent). On each Subsequent Closing Date, (i) each Lender shall pay its pro rata share of the applicable Subsequent Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at such Subsequent Closing, by wire transfer of immediately available funds in accordance with the Borrower’s written wire instructions, and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designee.
First Closing The First Closing shall have occurred.
