Common use of The Additional Closing Clause in Contracts

The Additional Closing. Provided that the Company is not then in default under this Agreement and subject to the provisions of Section 2.04, the Company may, with the written consent of a majority in interest of the Purchasers, upon not less than 10 days' notice given prior to May 6, 1997, offer to the Purchasers the option to purchase, and each Purchaser may, at its option, so purchase, subject to and in reliance upon the representations, warranties, terms and conditions of this Agreement and upon the terms and conditions hereinafter set forth, that number of Additional Preferred Shares set forth opposite the name of such Purchaser on Schedule I attached hereto, under the heading "Additional Preferred Shares." Any Additional Preferred Shares not subscribed for by the Purchasers pursuant to the previous sentence (the "Shortfall Shares") may be purchased by the Purchasers that did subscribe for Additional Preferred Shares pursuant to the previous sentence (the "Participating Purchasers"). Each Participating Purchaser shall have the right to purchase up to that number of Shortfall Shares as shall be determined by multiplying the total number of Shortfall Shares by a fraction the numerator of which shall be the sum of the Initial Preferred Shares and the Additional Preferred Shares subscribed for by such Participating Purchaser, and the denominator of which shall be the total number of Initial Preferred Shares and Additional Preferred Shares, in each case subscribed for by all such Participating Purchasers. Any Shortfall Shares not so subscribed for pursuant to this Section 1.05(b) shall be subscribed for by Xxxxxx, Xxxxxxx Strategic Partners Fund, L.P. and/or Strategic Associates, L.P. in proportions to be determined in the sole discretion of Xxxxxx, Xxxxxxx & Company, LLC. In the event that the Shortfall Shares to be subscribed for by a Participating Purchaser is determined to include fractional shares, such Participating Purchaser shall be permitted to purchase the number of shares determined by rounding such Participating Purchaser's allocated number of Shortfall Shares to the nearest whole number. The per share purchase price for each such Additional Preferred Share (as constituted on the date hereof) to be purchased pursuant to this Agreement shall be $6.00. Such purchase and sale of Additional Preferred Shares, if any, shall take place at a closing (the "Additional Closing") at the offices of Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP, High Street Tower, 000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, on such date or dates as the Company and the Purchasers may agree, but in all events on or prior to May 6, 1997. At the Additional Closing the Company will issue and deliver the certificates evidencing the Additional Preferred Shares sold at such Additional Closing to each of the Purchasers (or its nominee) against payment of the full purchase price therefor by wire transfer or check payable to the order of the Company.

The Additional Closing. Provided The issue, purchase and sale of the Additional Shares, if any (the “Additional Closing”), will take place at the offices of De Brauw Blackstone Westbroek N.V., Xxxxxx Xxxxxxxxxxx 00, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx, as soon as practicable and no later than the date that is three (3) Business Days after satisfaction or waiver of the Specified Additional Closing Conditions or at such other place or on such other date or in such other manner as the Parties may agree in writing (the “Additional Closing Date”). At the Additional Closing: (i) Investor will (A) execute and deliver to the Company is not then in default under this Agreement and subject all Additional Transaction Documents requiring Investor’s signature, (B) deliver the Additional Shares Price to the provisions Escrow Account, at which Escrow Account the Escrow Holder shall hold the Additional Purchase Price for the account of the Investor until the execution by the Civil Law Notary of the Deed(s) of Issue, upon which execution the Escrow Holder shall hold the Additional Shares Price for the account of the Company and shall transfer the Additional Shares Price from the Escrow Account to an account designated by the Company in written instructions delivered to Escrow Holder with a copy to Investor at least three (3) Business Days prior to the Additional Closing all in accordance with the Escrow Agreement (C) deliver to the Company and the Civil Law Notary an executed and, to the extent required by the Civil Law Notary, apostilled Power of Attorney; (ii) the Company will (A) execute and deliver to Investor all Additional Transaction Documents requiring the Company’s signature, (B) deliver to Investor the certificates contemplated by Section 2.046.1(f) and Section 6.1(g) for the Additional Closing and (C) deliver to Investor and the Civil Law Notary an executed and, to the extent required by the Civil Law Notary, apostilled Power of Attorney; and (iii) following completion of the actions set forth in clauses (i) and (ii), the Company mayand Investor will cause the Civil Law Notary to execute the Deed(s) of Issue, with pursuant to which deed(s) the written consent of a majority in interest Company will issue the Additional Shares to the Stichting, and the Company will register the issuance of the Purchasers, upon not less than 10 days' notice given prior to May 6, 1997, offer to Additional Shares in the Purchasers the option to purchase, Company’s shareholders register and each Purchaser may, at its option, so purchase, subject to and in reliance upon the representations, warranties, terms and conditions of this Agreement and upon the terms and conditions hereinafter set forth, that number of Additional Preferred Shares set forth opposite the name deliver confirmation of such Purchaser on Schedule I attached hereto, under registration to Investor (or its Investor Designee) and the heading "Parties shall cause the Stichting to deliver to Investor (or its Investor Designee) Depositary Receipts in respect of the Additional Preferred Shares." Any Additional Preferred Shares not subscribed for by the Purchasers pursuant to the previous sentence (the "Shortfall Shares") may be purchased by the Purchasers that did subscribe for Additional Preferred Shares pursuant to the previous sentence (the "Participating Purchasers"). Each Participating Purchaser shall have the right to purchase up to that number of Shortfall Shares as shall be determined by multiplying the total number of Shortfall Shares by a fraction the numerator of which shall be the sum of the Initial Preferred Shares and the Additional Preferred Shares subscribed for by such Participating Purchaser, and the denominator of which shall be the total number of Initial Preferred Shares and Additional Preferred Shares, in each case subscribed for by all such Participating Purchasers. Any Shortfall Shares not so subscribed for pursuant to this Section 1.05(b) shall be subscribed for by Xxxxxx, Xxxxxxx Strategic Partners Fund, L.P. and/or Strategic Associates, L.P. in proportions to be determined in the sole discretion of Xxxxxx, Xxxxxxx & Company, LLC. In the event that the Shortfall Shares to be subscribed for by a Participating Purchaser is determined to include fractional shares, such Participating Purchaser shall be permitted to purchase the number of shares determined by rounding such Participating Purchaser's allocated number of Shortfall Shares to the nearest whole number. The per share purchase price for each such Additional Preferred Share (as constituted on the date hereof) to be purchased pursuant to this Agreement shall be $6.00. Such purchase and sale of Additional Preferred Shares, if any, shall take place at a closing (the "Additional Closing") at the offices of Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP, High Street Tower, 000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, on such date or dates as the Company and the Purchasers may agree, but in all events on or prior to May 6, 1997. At the Additional Closing the Company will issue and deliver the certificates evidencing the Additional Preferred Shares sold at such Additional Closing to each of the Purchasers (or its nominee) against payment of the full purchase price therefor by wire transfer or check payable to the order of the CompanyStichting Documentation.

The Additional Closing. Provided that the (i) The Company is not then in default under this Agreement and subject to the provisions of Section 2.04, the Company may, with the written consent of a majority in interest of the Purchasers, upon not less than 10 days' notice given prior to May 6, 1997, offer to the Purchasers the option to purchase, and each Purchaser may, at its option, so purchase, subject to and in reliance upon the representations, warranties, terms and conditions of this Agreement and upon the terms and conditions hereinafter set forth, that number of Additional Preferred Shares set forth opposite the name of such Purchaser on Schedule I attached hereto, under the heading "Additional Preferred Shares." Any Additional Preferred Shares not subscribed for by the Purchasers pursuant to the previous sentence (the "Shortfall Shares") may be purchased by the Purchasers that did subscribe for Additional Preferred Shares pursuant to the previous sentence (the "Participating Purchasers"). Each Participating Purchaser shall have the right to deliver one or more written notices to the Purchasers (the "Additional Financing Notice") requiring such parties to buy the Additional Shares for an aggregate purchase up price of $16,000,000 (the "Additional Purchase Price"), but not to that number exceed $2,000,000 per Additional Financing Notice. The Company agrees to deliver one or more Additional Financing Notices for a minimum of Shortfall Shares as shall $4,000,000. An Additional Financing Notice may be determined by multiplying delivered no earlier than fifteen (15) Trading Days following the total number of Shortfall Shares by a fraction Effective Date or the numerator of which shall be the sum prior Additional Financing Notice. The closing of the Initial Preferred Shares and the Additional Preferred Shares subscribed for by such Participating Purchaser, and the denominator of which shall be the total number of Initial Preferred Shares and Additional Preferred Shares, in each case subscribed for by all such Participating Purchasers. Any Shortfall Shares not so subscribed for pursuant to this Section 1.05(b) shall be subscribed for by Xxxxxx, Xxxxxxx Strategic Partners Fund, L.P. and/or Strategic Associates, L.P. in proportions to be determined in the sole discretion of Xxxxxx, Xxxxxxx & Company, LLC. In the event that the Shortfall Shares to be subscribed for by a Participating Purchaser is determined to include fractional shares, such Participating Purchaser shall be permitted to purchase the number of shares determined by rounding such Participating Purchaser's allocated number of Shortfall Shares to the nearest whole number. The per share purchase price for each such Additional Preferred Share (as constituted on the date hereof) to be purchased pursuant to this Agreement shall be $6.00. Such purchase and sale of the Additional Preferred Shares, if any, shall take place at a closing Securities (the "Additional Closing") shall take place at the offices of Xxxxx, Xxxxxxx & XxxxxxxxxXxxxxx, LLP, High Street TowerSuite 1440, 000 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx Xxxxxx00000 on the fifth (5th) Business Day after the Additional Financing Notice is received by the Purchasers or the Company, Xxxxxxas the case may be, Xxxxxxxxxxxxx 00000, or on such other date as otherwise agreed to by the parties hereto; provided, however, that in no case shall the Additional Closing take place unless and until all of the conditions listed in Section 3 of this letter and the Additional Purchase Agreement shall have been satisfied by the Company or dates waived by the Purchasers. The date of each Additional Closing is hereinafter referred to as the Company and "Additional Closing Date." Notwithstanding anything to the Purchasers contrary contained in this letter, each Purchaser may agree, but in designate an Affiliate thereof to acquire all events on or prior to May 6, 1997. any portion of the Additional Securities. (ii) At the Additional Closing Closing, the parties shall deliver or shall cause to be delivered the following: (a) the Company will issue shall deliver to (x) each Purchaser or its designated Affiliate, (1) the number of Additional Shares registered in the name of such Purchaser or its designated Affiliate, representing the shares of Common Stock to be issued and deliver the certificates evidencing sold to such Purchaser at the Additional Preferred Shares sold at such Closing; (2) a legal opinion in form and substance acceptable to the Purchasers, and (3) executed Additional Transaction Documents and the Transfer Agent Instructions relating to the Additional Securities, and (4) a four (4) year transferable divisible warrant in the form of the Transaction Documents to purchase shares equal to 20% of the Additional Financing Notice with an exercise price equal to 120% of the average of the closing bid prices for the five day trading period immediately preceding the Additional Closing Date with provisions for cashless exercise at the Purchaser's option and with "piggy back" registration rights, (y) to Xxxxxxx & Prager, LLP, $15,000 at the First Additional Closing and $3,500 at each of the Purchasers (or its nominee) against Additional Closing thereof, as payment of the full purchase price therefor legal fees and expenses incurred by the Purchasers to prepare the Additional Transaction Documents, which amount shall be deducted by the Purchasers from the amount due to the Company for the Additional Securities and shall be paid directly to Xxxxxxx & Xxxxxx, LLP., (z) the fees of Ladenburg Xxxxxxxx Co., Inc.; and (b) each Purchaser shall deliver to the Company (1) its pro rata portion of the Additional Purchase Price, in United States dollars in immediately available funds by wire transfer or check payable to an account designated in writing by the Company for such purpose prior to the order of Additional Closing Date and (2) the Companyexecuted Additional Transaction Documents.

The Additional Closing. Provided that the (i) The Company is not then in default under this Agreement and subject to the provisions of Section 2.04, the Company may, with the written consent of a majority in interest of the Purchasers, upon not less than 10 days' notice given prior to May 6, 1997, offer to the Purchasers the option to purchase, and each Purchaser may, at its option, so purchase, subject to and in reliance upon the representations, warranties, terms and conditions of this Agreement and upon the terms and conditions hereinafter set forth, that number of Additional Preferred Shares set forth opposite the name of such Purchaser on Schedule I attached hereto, under the heading "Additional Preferred Shares." Any Additional Preferred Shares not subscribed for by the Purchasers pursuant to the previous sentence (the "Shortfall Shares") may be purchased by the Purchasers that did subscribe for Additional Preferred Shares pursuant to the previous sentence (the "Participating Purchasers"). Each Participating Purchaser shall have the right to purchase up deliver one or more written notices to that number of Shortfall the Purchasers (the "Additional Financing Notice") requiring such parties to buy the Additional Shares as shall not to exceed $2,000,000 per Additional Financing Notice. An Additional Financing Notice may be determined by multiplying delivered no earlier than fifteen (15) Trading Days following the total number of Shortfall Shares by a fraction Effective Date or the numerator of which shall be the sum prior Additional Financing Notice. The closing of the Initial Preferred Shares and the Additional Preferred Shares subscribed for by such Participating Purchaser, and the denominator of which shall be the total number of Initial Preferred Shares and Additional Preferred Shares, in each case subscribed for by all such Participating Purchasers. Any Shortfall Shares not so subscribed for pursuant to this Section 1.05(b) shall be subscribed for by Xxxxxx, Xxxxxxx Strategic Partners Fund, L.P. and/or Strategic Associates, L.P. in proportions to be determined in the sole discretion of Xxxxxx, Xxxxxxx & Company, LLC. In the event that the Shortfall Shares to be subscribed for by a Participating Purchaser is determined to include fractional shares, such Participating Purchaser shall be permitted to purchase the number of shares determined by rounding such Participating Purchaser's allocated number of Shortfall Shares to the nearest whole number. The per share purchase price for each such Additional Preferred Share (as constituted on the date hereof) to be purchased pursuant to this Agreement shall be $6.00. Such purchase and sale of the Additional Preferred Shares, if any, shall take place at a closing Securities (the "Additional Closing") shall take place at the offices of Xxxxx, Xxxxxxx & XxxxxxxxxXxxxxx, LLP, High Street TowerSuite 1440, 000 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx Xxxxxx00000 on the eleventh (11th) Business Day after the Additional Financing Notice is received by the Purchasers or the Company, Xxxxxxas the case may be, Xxxxxxxxxxxxx 00000, or on such other date as otherwise agreed to by the parties hereto; provided, however, that in no case shall the Additional Closing take place unless and until all of the conditions listed in Section 3 of this letter and the Additional Purchase Agreement shall have been satisfied by the Company or dates waived by the Purchasers. The date of each Additional Closing is hereinafter referred to as the Company and "Additional Closing Date." Notwithstanding anything to the Purchasers contrary contained in this letter, each Purchaser may agree, but in designate an Affiliate thereof to acquire all events on or prior to May 6, 1997. any portion of the Additional Securities. (ii) At the Additional Closing Closing, the parties shall deliver or shall cause to be delivered the following: (a) the Company will issue shall deliver to (x) each Purchaser or its designated Affiliate, (1) the number of Additional Shares registered in the name of such Purchaser or its designated Affiliate, representing the shares of Common Stock to be issued and deliver the certificates evidencing sold to such Purchaser at the Additional Preferred Shares sold Closing; (2) a legal opinion in form and substance mutually acceptable to the Purchasers and the Company, and (3) executed Additional Transaction Documents and the Transfer Agent Instructions relating to the Additional Securities, and to Xxxxxxx & Prager, LLP, $10,000 at such the First Additional Closing to and $2,500 at each of the Purchasers (or its nominee) against Additional Closing thereof, as payment of the full purchase price therefor legal fees and expenses incurred by the Purchasers to prepare the Additional Transaction Documents, which amount shall be deducted by the Purchasers from the amount due to the Company for the Additional Securities and shall be paid directly to Xxxxxxx & Xxxxxx, LLP., the fees of Ladenburg Thalmaan Co., Inc.;and (b) each Purchaser shall deliver to the Company (1) its pro rata portion of the Additional Purchase Price, in United States dollars in immediately available funds by wire transfer or check payable to an account designated in writing by the Company for such purpose prior to the order of Additional Closing Date and (2) the Companyexecuted Additional Transaction Documents.

The Additional Closing. Provided that the (i) The Company is not then in default under this Agreement and subject to the provisions of Section 2.04, the Company may, with the written consent of a majority in interest of the Purchasers, upon not less than 10 days' notice given prior to May 6, 1997, offer to the Purchasers the option to purchase, and each Purchaser may, at its option, so purchase, subject to and in reliance upon the representations, warranties, terms and conditions of this Agreement and upon the terms and conditions hereinafter set forth, that number of Additional Preferred Shares set forth opposite the name of such Purchaser on Schedule I attached hereto, under the heading "Additional Preferred Shares." Any Additional Preferred Shares not subscribed for by the Purchasers pursuant to the previous sentence (the "Shortfall Shares") may be purchased by the Purchasers that did subscribe for Additional Preferred Shares pursuant to the previous sentence (the "Participating Purchasers"). Each Participating Purchaser shall have the right to deliver one or more written notices to the Purchaser (the "Additional Financing Notice") requiring such party to 2 buy the Additional Shares for an aggregate purchase up price of $20,000,000 (the "Additional Purchase Price"), but not to that number exceed $2,000,000.00 per Additional Financing Notice. The Company agrees to deliver one or more Additional Financing Notices for a minimum of Shortfall Shares as shall $2,500,000. An Additional Financing Notice may be determined by multiplying delivered no earlier than fifteen (15) Trading Days following the total number of Shortfall Shares by a fraction Effective Date or the numerator of which shall be the sum prior Additional Financing Notice. The closing of the Initial Preferred Shares and the Additional Preferred Shares subscribed for by such Participating Purchaser, and the denominator of which shall be the total number of Initial Preferred Shares and Additional Preferred Shares, in each case subscribed for by all such Participating Purchasers. Any Shortfall Shares not so subscribed for pursuant to this Section 1.05(b) shall be subscribed for by Xxxxxx, Xxxxxxx Strategic Partners Fund, L.P. and/or Strategic Associates, L.P. in proportions to be determined in the sole discretion of Xxxxxx, Xxxxxxx & Company, LLC. In the event that the Shortfall Shares to be subscribed for by a Participating Purchaser is determined to include fractional shares, such Participating Purchaser shall be permitted to purchase the number of shares determined by rounding such Participating Purchaser's allocated number of Shortfall Shares to the nearest whole number. The per share purchase price for each such Additional Preferred Share (as constituted on the date hereof) to be purchased pursuant to this Agreement shall be $6.00. Such purchase and sale of the Additional Preferred Shares, if any, shall take place at a closing Securities (the "Additional Closing") shall take place at the offices of XxxxxKriexxx & Xragxx, Xxxxxxx & XxxxxxxxxXxqs., LLPSuitx 0000, High Street Tower00 Xxxxxxxx, 000 Xxx Xxxx, Xxx Xxxx Xxxxxx00000 xx the fifth (5th) Business Day after the Additional Financing Notice is received by the Purchasers or the Company, Xxxxxxas the case may be, Xxxxxxxxxxxxx 00000, or on such other date as otherwise agreed to by the parties hereto; provided, however, that in no case shall the Additional Closing take place unless and until all of the conditions listed in Section ___ of this letter and the Additional Purchase Agreement shall have been satisfied by the Company or dates waived by the Purchasers. The date of the Additional Closing is hereinafter referred to as the Company and "Additional Closing Date." Notwithstanding anything to the Purchasers contrary contained in this letter, each Purchaser may agree, but in designate an Affiliate thereof to acquire all events on or prior to May 6, 1997. any portion of the Additional Securities. (ii) At the Additional Closing Closing, the parties shall deliver or shall cause to be delivered the following: (a) the Company will issue shall deliver to (x) each Purchaser or its designated Affiliate, (1) the number of Additional Shares registered in the name of such Purchaser or its designated Affiliate, representing the shares of Common Stock to be issued and deliver the certificates evidencing sold to such Purchaser at the Additional Preferred Shares sold at such Closing; (2) a legal opinion in form and substance acceptable to the Purchasers, and (3) executed Additional Transaction Documents and the Transfer Agent Instructions relating to the Additional Securities, and (4) a five (5) year transferable divisible warrant in the form of the Transaction Documents to purchase shares equal to 15% of the Additional Financing Notice with an exercise price equal to 125% of the average of the closing bid prices for the five day trading period immediately preceding the Additional Closing Date with provisions for cashless exercise at the Purchaser's option and with "piggy back" registration rights, (y) to Kriexxx & Xrager, Esqs., $12,500 at the First Additional Closing and $2,500 at each Additional Closing thereof, as reimbursement of the legal fees and expenses incurred by the Purchasers to prepare the Additional Transaction Documents, which amount shall be deducted by the Purchasers from the amount due to the Company for the Additional Securities and shall be paid directly to Kriexxx & Xragxx, Xxqs., (or z) the fees of Grayxxx & Xssociates; and (b) each Purchaser shall deliver to the Company (1) its nominee) against payment pro rata portion of the full purchase price therefor Additional Purchase Price, in United States dollars in immediately available funds by wire transfer or check payable to an account designated in writing by the Company for such purpose prior to the order of Additional Closing Date and (2) the Companyexecuted Additional Transaction Documents.

The Additional Closing. Provided that the (i) The Company is not then in default under this Agreement and subject to the provisions of Section 2.04, the Company may, with the written consent of a majority in interest of the Purchasers, upon not less than 10 days' notice given prior to May 6, 1997, offer to the Purchasers the option to purchase, and each Purchaser may, at its option, so purchase, subject to and in reliance upon the representations, warranties, terms and conditions of this Agreement and upon the terms and conditions hereinafter set forth, that number of Additional Preferred Shares set forth opposite the name of such Purchaser on Schedule I attached hereto, under the heading "Additional Preferred Shares." Any Additional Preferred Shares not subscribed for by the Purchasers pursuant to the previous sentence (the "Shortfall Shares") may be purchased by the Purchasers that did subscribe for Additional Preferred Shares pursuant to the previous sentence (the "Participating Purchasers"). Each Participating Purchaser shall have the right to deliver one or more written notices to the Purchaser (the "Additional Financing Notice") requiring such party to buy the Additional Shares for an aggregate purchase up price of $22,000,000 (the "Additional Purchase Price"), but not less than $800,000 or to that number of Shortfall Shares as shall exceed $4,000,000 per Additional Financing Notice. An Additional Financing Notice may be determined by multiplying delivered no earlier than twenty (20) Trading Days following the total number of Shortfall Shares by a fraction Effective Date or thirty (30) Trading Days following the numerator of which shall be the sum prior Additional Financing Notice. The closing of the Initial Preferred Shares and the Additional Preferred Shares subscribed for by such Participating Purchaser, and the denominator of which shall be the total number of Initial Preferred Shares and Additional Preferred Shares, in each case subscribed for by all such Participating Purchasers. Any Shortfall Shares not so subscribed for pursuant to this Section 1.05(b) shall be subscribed for by Xxxxxx, Xxxxxxx Strategic Partners Fund, L.P. and/or Strategic Associates, L.P. in proportions to be determined in the sole discretion of Xxxxxx, Xxxxxxx & Company, LLC. In the event that the Shortfall Shares to be subscribed for by a Participating Purchaser is determined to include fractional shares, such Participating Purchaser shall be permitted to purchase the number of shares determined by rounding such Participating Purchaser's allocated number of Shortfall Shares to the nearest whole number. The per share purchase price for each such Additional Preferred Share (as constituted on the date hereof) to be purchased pursuant to this Agreement shall be $6.00. Such purchase and sale of the Additional Preferred Shares, if any, shall take place at a closing Securities (the "Additional Closing") shall take place at the offices of Xxxxx, Xxxxxxx & XxxxxxxxxPrager, LLP, High Street TowerSuite 1440, 000 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, on such date the fifteenth (15) Business Day after the Additional Financing Notice is received by the Purchasers or dates the Company, as the Company case may be, or on such other date as otherwise agreed to by the parties hereto; provided, however, that in no case shall the Additional Closing take place unless and until all of the conditions listed in Section 3 of this letter and the Purchasers Additional Purchase Agreements shall have been satisfied by the Company or waived by the Purchasers. The date of the Additional Closing is hereinafter referred to as the "Additional Closing Date." Notwithstanding anything to the contrary contained in this letter. Purchaser may agree, but in designate an Affiliate thereof to acquire all events on or prior to May 6, 1997. any portion of the Additional Shares. (ii) At the Additional Closing Closing, the parties shall deliver or shall cause to be delivered the following: (a) the Company will issue and shall deliver the certificates evidencing the Additional Preferred Shares sold at such Additional Closing to each of the Purchasers (x) Purchaser or its nomineedesignated Affiliate, (1) against payment the number of Additional Shares registered in the full purchase price therefor by wire transfer name of Purchaser or check payable to the order of the Company.its

The Additional Closing. Provided that (a) Upon satisfaction of the Company is not then in default under this Agreement and Additional Closing Conditions, the Board shall have the right, exercisable until February 28, 2017, to require PHS to purchase the Additional Closing Shares at the Additional Closing Purchase Price (the “Additional Closing Option”), subject to the provisions of Section 2.04, the Company may, with the written consent of a majority in interest satisfaction of the Purchasers, upon not less than 10 days' notice given prior to May 6, 1997, offer to the Purchasers the option to purchase, and each Purchaser may, at its option, so purchase, subject to and in reliance upon the representations, warranties, terms and conditions of this Agreement and upon the terms and conditions hereinafter set forth, that number of Additional Preferred Shares set forth opposite the name of such Purchaser on Schedule I attached hereto, under the heading "Additional Preferred Shares." Any Additional Preferred Shares not subscribed for by the Purchasers pursuant to the previous sentence (the "Shortfall Shares") may be purchased by the Purchasers that did subscribe for Additional Preferred Shares pursuant to the previous sentence (the "Participating Purchasers")in Section 6.2. Each Participating Purchaser shall have the right to purchase up to that number of Shortfall Shares as shall be determined by multiplying the total number of Shortfall Shares by a fraction the numerator of which shall be the sum The completion of the Initial Preferred Shares and the Additional Preferred Shares subscribed for by such Participating Purchaser, and the denominator of which shall be the total number of Initial Preferred Shares and Additional Preferred Shares, in each case subscribed for by all such Participating Purchasers. Any Shortfall Shares not so subscribed for pursuant to this Section 1.05(b) shall be subscribed for by Xxxxxx, Xxxxxxx Strategic Partners Fund, L.P. and/or Strategic Associates, L.P. in proportions to be determined in the sole discretion of Xxxxxx, Xxxxxxx & Company, LLC. In the event that the Shortfall Shares to be subscribed for by a Participating Purchaser is determined to include fractional shares, such Participating Purchaser shall be permitted to purchase the number of shares determined by rounding such Participating Purchaser's allocated number of Shortfall Shares to the nearest whole number. The per share purchase price for each such Additional Preferred Share (as constituted on the date hereof) to be purchased pursuant to this Agreement shall be $6.00. Such purchase and sale of Additional Preferred Shares, if any, shall take place at a closing (the "Additional Closing") at the offices of Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP, High Street Tower, 000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, on such date or dates as the Company and the Purchasers may agree, but in all events on or prior to May 6, 1997. At the Additional Closing Shares (the “Additional Closing”) shall occur at a time to be determined by the Board (the “Additional Closing Date”), provided that the Additional Closing Date shall in no event be earlier than November 15, 2016 and shall otherwise be no more than thirty (30) days, and no less than ten (10) days, after the date of the Additional Closing Notice. The Company shall provide PHS with written notice of its exercise of such option (the “Additional Closing Notice”), which notice shall also indicate the Additional Closing Date, the number of Additional Closing Shares that PHS is obligated to purchase at the Additional Closing and the Additional Closing Purchase Price. Notwithstanding the foregoing, if the Additional Closing Purchase Price is less than the Carry-over Purchase Price, the Company will issue and deliver the certificates evidencing may elect to proceed with the Additional Preferred Shares sold at such Closing only if it has received Requisite Stockholder Approval or stockholder approval is not otherwise required under Nasdaq rules. The “Additional Closing to each Conditions” shall mean (i) the Board having reasonably determined, as of the Purchasers (or its nominee) against payment date of the full purchase price therefor by wire transfer or check payable to the order of Additional Closing Notice, that the Company’s remaining cash and cash equivalents are not sufficient to fund at least three months of operations in accordance with the Approved Transaction Budget and (ii) the IDMC having held its next regular meeting after the First IDMC Meeting (currently anticipated to be held in November or December 2016) (the “Second IDMC Meeting”) and having made a recommendation at or following the Second IDMC Meeting for the ADAPT Study that the Company (a) continue the ADAPT Study or (b) discontinue the ADAPT Study based on favorable efficacy.

The Additional Closing. Provided that the Company is not ---------------------- then in default under this Agreement and subject to the provisions of Section 2.04, the Company may, with the written consent of a majority in interest of the Purchasers, upon not less than 10 days' notice given prior to May 6, 1997, offer to the Purchasers the option to purchase, and each Purchaser may, at its option, so purchase, subject to and in reliance upon the representations, warranties, terms and conditions of this Agreement and upon the terms and conditions hereinafter set forth, that number of Additional Preferred Shares set forth opposite the name of such Purchaser on Schedule I attached hereto, under the ---------- heading "Additional Preferred Shares." Any Additional Preferred Shares not subscribed for by the Purchasers pursuant to the previous sentence (the "Shortfall Shares") may be purchased by the Purchasers that did subscribe for Additional Preferred Shares pursuant to the previous sentence (the "Participating Purchasers"). Each Participating Purchaser shall have the right to purchase up to that number of Shortfall Shares as shall be determined by multiplying the total number of Shortfall Shares by a fraction the numerator of which shall be the sum of the Initial Preferred Shares and the Additional Preferred Shares subscribed for by such Participating Purchaser, and the denominator of which shall be the total number of Initial Preferred Shares and Additional Preferred Shares, in each case subscribed for by all such Participating Purchasers. Any Shortfall Shares not so subscribed for pursuant to this Section 1.05(b) shall be subscribed for by Xxxxxx, Xxxxxxx Strategic Partners Fund, L.P. and/or Strategic Associates, L.P. in proportions to be determined in the sole discretion of Xxxxxx, Xxxxxxx & Company, LLC. In the event that the Shortfall Shares to be subscribed for by a Participating Purchaser is determined to include fractional shares, such Participating Purchaser shall be permitted to purchase the number of shares determined by rounding such Participating Purchaser's allocated number of Shortfall Shares to the nearest whole number. The per share purchase price for each such Additional Preferred Share (as constituted on the date hereof) to be purchased pursuant to this Agreement shall be $6.00. Such purchase and sale of Additional Preferred Shares, if any, shall take place at a closing (the "Additional Closing") at the offices of Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP, High Street Tower, 000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, on such date or dates as the Company and the Purchasers may agree, but in all events on or prior to May 6, 1997. At the Additional Closing the Company will issue and deliver the certificates evidencing the Additional Preferred Shares sold at such Additional Closing to each of the Purchasers (or its nominee) against payment of the full purchase price therefor by wire transfer or check payable to the order of the Company.