Common use of Subsequent Financings Clause in Contracts

Subsequent Financings. (a) For a period of twelve (12) months following the effective date of the Registration Statement (as defined in the Registration Rights Agreement), the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “Rights Notice”) each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to each Noteholder a Rights Notice, the Company shall first deliver to each Noteholder a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”) within three (3) Trading Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder if it wants to review the details of such financing. Upon the request of a Noteholder, and only upon a request by such Noteholder within three (3) Trading Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Trading Days after such request, deliver a Rights Notice to such Noteholder. The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known), the proposed closing date of the Subsequent Financing, which shall be no earlier than ten (10) Trading Days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder an option (the “Rights Option”) during the ten (10) Trading Days following delivery of the Rights Notice (the “Option Period”) to inform the Company whether such Noteholder will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. If any Noteholder elects not to participate in any such Subsequent Financing, the other Noteholder may therein participate on a pro rata basis. For purposes of this Section, all references to “pro rata” means, for any Noteholder electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number of Notes and/or Preferred Stock, (as the case may be), held by such Noteholder at the Closing by (y) the total number of all of the Notes and/or Preferred Stock (as the case may be), outstanding. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; provided that all of the material terms and conditions of the closing are the same as those provided to the Noteholder in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur that date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a) shall not apply to issuances of securities in a Permitted Financing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “Permitted Financing” shall mean (i) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement or issued pursuant to this Agreement (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Purchasers), (ii) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company’s stock option plans and employee stock purchase plans that either (x) exist on the date hereof, or (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination), (iii) any warrants issued to the placement agent and its designees for the transactions contemplated by this Agreement, and (iv) securities issued in connection with a merger, consolidation, acquisition, strategic joint venture, or strategic partnership relationship.

Subsequent Financings. (a) For a period of twelve twenty-four (1224) months following the effective date of the Registration Statement (as defined in the Registration Rights AgreementClosing Date, subject to Section 3.22(e), the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “"Rights Notice”") each holder the Purchaser of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) all of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to each Noteholder a Rights Notice, the Company shall first deliver to each Noteholder a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”) within three (3) Trading Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder if it wants to review the details of such financing. Upon the request of a Noteholder, and only upon a request by such Noteholder within three (3) Trading Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Trading Days after such request, deliver a Rights Notice to such Noteholder. The Rights Notice Purchaser shall describehave the right, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts for a period of all investors participating in the Subsequent Financing twenty (if known), the proposed closing date of the Subsequent Financing, which shall be no earlier than ten (1020) Trading Days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder an option (the “Rights Option”) during the ten (10) Trading Days calendar days following delivery receipt of the Rights Notice (the “Option Period”), to accept or reject the right to invest in the Subsequent Financing (“First Refusal Right”) by written notice to inform the Company. If the Purchaser elects to exercise its First Refusal Rights, it shall deliver a notice of same to the Company whether such Noteholder will purchase up within the Option Period and then the Company shall be obligated to its pro rata portion of all or a portion of pursue the securities being offered in such Subsequent Financing with the Purchaser on the same, absolute same terms and conditions as contemplated by such Subsequent Financingset forth in the Rights Notice. If any Noteholder elects not to participate in any such Subsequent FinancingIf, and only if, the other Noteholder Company receives written notice from the Purchaser that it will not exercise its First Refusal Rights, then and only then, may therein participate on the Company pursue the Subsequent Financing with a pro rata basis. For purposes of this Sectionthird party; provided that, all references to “pro rata” means, for any Noteholder electing to participate in such third party Subsequent Financing, Financing shall: (i) not commence until after the percentage obtained by dividing (x) the number of Notes and/or Preferred Stock, (as the case may be), held by such Noteholder at the Closing by (y) the total number of all expiration of the Notes and/or Preferred Stock Option Period; (ii) close within thirty (30) days of the expiration of the Option Period (“Third Party Closing Date”); and (iii) be carried out on the same terms and conditions as set forth in the case may be), outstandingRights Notice. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; provided that all of the material terms and conditions of the closing are the same as those provided to the Noteholder in the Rights Notice. If the closing of the proposed third party Subsequent Financing does not occur that dateon the Third Party Closing Date, any closing of the contemplated third party Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a) shall not apply to issuances of securities in a Permitted Financing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “"Permitted Financing” " shall mean (i) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (ii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement or issued pursuant to this Agreement (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Purchasers), (iiiii) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as such issuances are not for the purpose of raising capital, (iv) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company’s stock option plans and employee stock purchase plans that either (x) outstanding as they exist on the date hereof, or (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination)this Agreement, (iiiv) the payment of dividends on the Preferred Shares in shares of Common Stock, and, (vi) any warrants issued to the placement agent and its designees for the transactions contemplated by this Agreement, and (iv) securities issued in connection with a merger, consolidation, acquisition, strategic joint venture, or strategic partnership relationship.

Subsequent Financings. (a) For a period of twelve (12) months following so long as the effective date of the Registration Statement (as defined in the Registration Rights Agreement)Notes remain outstanding, the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “Rights Notice”) each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Purchasers of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to each Noteholder a Rights Noticeincluding convertible debt securities (collectively, the Company shall first deliver to each Noteholder a written notice of its intention to effect a Subsequent “Financing (“Pre-NoticeSecurities”) within three (3) Trading Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder if it wants to review the details of such financing. Upon the request of a Noteholder, and only upon a request by such Noteholder within three (3) Trading Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Trading Days after such request, deliver a Rights Notice to such Noteholder). The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known)Financing, the proposed closing date of the Subsequent Financing, which shall be no earlier than ten within twenty (1020) Trading Days calendar days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Purchaser an option (the “Rights Option”) during the ten (10) Trading Days days following delivery of the Rights Notice (the “Option Period”) to inform the Company whether such Noteholder Purchaser will purchase securities in such Subsequent Financing, up to its pro rata portion of all or a portion (as described below) of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. If any Noteholder Purchaser elects not to participate in any such Subsequent Financing, the other Noteholder Purchasers may therein participate on a pro pro-rata basis. For purposes of this Section, all references to “pro rata” means, for any Noteholder Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number principal amount of the Notes and/or Preferred Stock, (as the case may be), held purchased by such Noteholder Purchaser at the each Closing by (y) the total number principal amount of all of the Notes and/or Preferred Stock (as purchased by all of the case may be), outstandingparticipating Purchasers at each Closing. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder Purchasers within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; provided that all of the material terms and conditions of the closing are substantially the same as those provided to the Noteholder Purchasers in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur on that date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(aSections 3.19(a) and (c), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.19(a) shall not apply to to: (i) issuances of securities in a Permitted Financing; or (ii) with respect to any Purchaser that holds less than 10% of the Notes issued to it upon the Closing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “Permitted Financing” shall mean (i) securities issued pursuant to any financing described in and meeting the conversion or exercise requirements of convertible or exercisable securities issued or outstanding on or prior to Section 3.5(c) of the date of this Agreement or issued pursuant to this Agreement (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Purchasers)Notes, (ii) Common Stock any Subsequent Financing whereby the Company issues equity securities or securities exercisable or convertible to common stock as part of a capital raising transaction or series of transactions to raise up to $10 million so long as such equity securities are issued or the issuance or grants of options to purchase Common Stock pursuant to by the Company’s stock option plans , or convertible or exercisable, at a price equal to at least $0.55 per share (as adjusted for splits, combinations and employee stock purchase plans that either (x) exist on the like occurring after the date hereof, or (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination), ; and (iii) any warrants issued Subsequent Financing for which the proceeds will be used to fully satisfy the placement agent and its designees for Company’s obligations under the transactions contemplated by this Agreement, and (iv) securities issued in connection with a merger, consolidation, acquisition, strategic joint venture, or strategic partnership relationshipNote.

Subsequent Financings. (a) For a period of twelve one (121) months year following the effective date of the Registration Statement (as defined in the Registration Rights Agreement), the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “"Rights Notice”") each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Purchasers of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to each Noteholder Purchaser a Rights Notice, the Company shall first deliver to each Noteholder Purchaser a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”) within three (3) Trading Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder Purchaser if it wants to review the details of such financing. Upon the request of a NoteholderPurchaser, and only upon a request by such Noteholder Purchaser within three (3) Trading Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Trading Days after such request, deliver a Rights Notice to such NoteholderPurchaser. The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known), the proposed closing date of the Subsequent Financing, which shall be no earlier than ten (10) Trading Days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Purchaser an option (the “Rights Option”) during the ten (10) Trading Days following delivery of the Rights Notice (the “Option Period”) to inform the Company whether such Noteholder Purchaser will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing, provided that, the amount of such purchase shall not exceed such Purchaser’s Purchase Price hereunder except as allowed by the following sentence. If any Noteholder Purchaser elects not to participate in any such Subsequent Financing, the other Noteholder Purchasers may therein participate on a pro pro-rata basisbasis so long as such participation in the aggregate does not exceed the total Purchase Price hereunder. For purposes of this Section, all references to “pro rata” means, for any Noteholder Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number of Notes and/or Preferred Stock, (as the case may be), held Shares purchased by such Noteholder Purchaser at the Closing by (y) the total number of all of the Notes and/or Preferred Stock (as Shares purchased by all of the case may be), outstandingparticipating Purchasers at the Closing. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder any or all of Purchasers within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third partyset forth in the Rights Notice (or within thirty (30) days thereafter) without the participation of any or all of such Purchasers; provided that that, all of the material terms and conditions of the closing are the same as those provided to the Noteholder Purchasers in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur that dateon the scheduled closing date set forth in the Rights Notice (or within thirty (30) days thereafter), any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a3.20(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.20(a) shall not apply to issuances of securities in a Permitted Financing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “"Permitted Financing” " shall mean (i) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (ii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement or issued pursuant to this Agreement (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Purchasers), (iiiii) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as such issuances are not for the purpose of raising capital, (iv) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company’s stock option plans and employee stock purchase plans that either (x) outstanding as they exist on the date hereofof this Agreement, or and (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination), (iiiv) any warrants issued to the placement agent and its designees for the transactions contemplated by this the Purchase Agreement, and (iv) securities issued in connection with a merger, consolidation, acquisition, strategic joint venture, or strategic partnership relationship.

Subsequent Financings. (a) For a period of twelve (12) months following the effective date of the Registration Statement (as defined in the Registration Rights Agreement)Until December 31, 2009, the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “Rights Notice”) each holder of Notes and/or Preferred Stock Shares (as the case may beeach, each a “NoteholderPreferred Stockholder” and collectively the “NoteholdersPreferred Stockholders”) of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”)party, of Common Stock or Stock, any debt or equity securities convertible, exercisable or exchangeable into Common StockStock or any debt securities (a “Subsequent Financing”); provided, however, prior to delivering to each Noteholder Preferred Stockholder a Rights Notice, the Company shall first deliver to each Noteholder Preferred Stockholder a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”) within three (3) Trading Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder Preferred Stockholder if it wants to review the details of such financing. Upon the request of a NoteholderPreferred Stockholder, and only upon a request by such Noteholder Preferred Stockholder within three (3) Trading Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Trading Days after such request, deliver a Rights Notice to such NoteholderPreferred Stockholder. The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known), the proposed closing date of the Subsequent Financing, which shall be no earlier than ten (10) Trading Days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Preferred Stockholder an option (the “Rights Option”) during the ten (10) Trading Days following delivery of the Rights Notice (the “Option Period”) to inform the Company whether such Noteholder Preferred Stockholder will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. If any Noteholder Preferred Stockholder elects not to participate in any such Subsequent Financing, the other Noteholder Preferred Stockholders may therein participate on a pro pro-rata basis. For purposes of this Section, all references to “pro rata” means, for any Noteholder Preferred Stockholder electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number of Notes and/or Preferred Stock, (as the case may be), Shares held by such Noteholder Preferred Stockholder at the Initial Closing plus the number of Preferred Shares purchased at any Additional Closing, by (y) the total number of all of the Notes and/or Preferred Stock (as the case may be), outstandingShares issued hereunder. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder Preferred Stockholder within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; provided provided, that all of the material terms and conditions of the closing are the same as those provided to the Noteholder Preferred Stockholder in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur that date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a3.17(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.17(a) shall not apply to issuances of securities in a Permitted Financing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “Permitted Financing” shall mean (i) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (ii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement or issued pursuant to this Agreement or any of the other Transaction Documents (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Purchasers), (iiiii) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as such issuances are not for the purpose of raising capital, (iv) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company’s stock option plans and employee stock purchase plans that either Stock Option Plan (x) exist on the date hereof, or (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determinationdefined below), and (iiiv) any warrants issued to the placement agent agent, financial advisors and its their respective designees for the transactions contemplated by this Agreement, and (iv) securities issued in connection with a merger, consolidation, acquisition, strategic joint venture, or strategic partnership relationshipthe Transaction Documents.

Subsequent Financings. (a) For a period of twelve (12) months following the effective date of the Registration Statement (as defined in the Registration Rights Agreement)Closing, the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “Rights Notice”) each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Purchasers of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to each Noteholder Purchaser a Rights Notice, the Company shall first deliver to each Noteholder Eligible Purchaser a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”) within three (3) Trading Business Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder Eligible Purchaser if it wants to review the details of such financing. Upon the request of a Noteholderan Eligible Purchaser, and only upon a request by such Noteholder Eligible Purchaser within three (3) Trading Business Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Trading Business Days after such request, deliver a Rights Notice to such NoteholderEligible Purchaser. The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known), the proposed closing date of the Subsequent Financing, which shall be no earlier than ten (10) Trading Business Days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Purchaser an option (the “Rights Option”) during the ten five (105) Trading Business Days following delivery of the Rights Notice (the “Option Period”) to inform the Company whether such Noteholder Eligible Purchaser will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. If any Noteholder elects not to participate in any such Subsequent Financing, provided that, the other Noteholder may therein participate on a pro rata basisamount of such purchase shall not exceed such Purchaser’s Purchase Price. For purposes of this Section, all references to “pro rata” means, for any Noteholder Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number of Notes and/or Preferred Stock, (as the case may be), held Note Shares purchased by such Noteholder Purchaser at the Closing by (y) the total number of all of the Notes and/or Preferred Stock (as Note Shares purchased by all of the case may be), outstandingparticipating Purchasers at the Closing. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder any or all of Eligible Purchasers within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third partyset forth in the Rights Notice (or within sixty (60) days thereafter) without the participation of any or all of such Purchasers; provided that that, all of the material terms and conditions of the closing are the same as those provided to the Noteholder Purchasers in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur that dateon the scheduled closing date set forth in the Rights Notice (or within sixty (60) days thereafter), any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a3.12(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.12(a) shall not apply to issuances of securities in a Permitted Financing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “Permitted Financing” shall mean (i) securities issued pursuant to a bona fide acquisition of another business entity or business segment of any such entity by the Company pursuant to a merger, purchase of substantially all the assets or any type of reorganization (each an “Acquisition”) provided that (A) the Company will own more than fifty percent (50%) of the voting power of such business entity or business segment of such entity and (B) such Acquisition is approved by the Company’s Board of Directors; (ii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement or issued pursuant to this Agreement (so long as the terms governing the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Purchasers), ; (iiiii) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as such issuances are not for the primary purpose of raising capital; (iv) Common Stock issued or the issuance or grants of options to purchase Common Stock Stock, in each case, at no less than the then-applicable fair market value, pursuant to equity incentive plans that are adopted by the Company’s stock option plans and employee stock purchase plans that either Board of Directors; (xv) exist on the date hereof, or (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination), (iii) any warrants securities issued to the any placement agent and its respective designees for the transactions contemplated by this Agreement; (vi) securities issued at no less than the then-applicable fair market value to advisors or consultants (including, without limitation, financial advisors and investor relations firms) in connection with any engagement letter or consulting agreement, provided that any such issuance is approved by the Company’s Board of Directors; (ivvii) securities issued to financial institutions or lessors in connection with reasonable commercial credit arrangements, equipment financings or similar transactions, provided that any such issue is approved by the Company’s Board of Directors; (viii) securities issued to vendors or customers or to other persons in similar commercial situations as the Company, provided that any such issue is approved by the Company’s Board of Directors; (ix) securities issued in connection with any recapitalization of the Company; or (x) securities issued pursuant to an underwritten public offering of its common stock. Notwithstanding anything contained herein to the contrary, although the Company shall be entitled to complete a mergerPermitted Financing, consolidation, acquisition, strategic joint venture, or strategic partnership relationshipall Permitted Financings shall rank junior to the Notes.

Subsequent Financings. (a) For So long as a period Purchaser owns at least ten percent (10%) of twelve (12) months following the effective total number of Preferred Shares such Purchaser purchased on the date of the Registration Statement this Agreement (as defined in the Registration Rights Agreementan “Eligible Purchaser”), the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “"Rights Notice”") each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Eligible Purchasers of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to each Noteholder Eligible Purchaser a Rights Notice, the Company shall first deliver to each Noteholder Eligible Purchaser a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”) within three (3) Trading Business Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder Eligible Purchaser if it wants to review the details of such financing. Upon the request of a Noteholderan Eligible Purchaser, and only upon a request by such Noteholder Eligible Purchaser within three (3) Trading Business Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Trading Business Days after such request, deliver a Rights Notice to such NoteholderEligible Purchaser. The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known), the proposed closing date of the Subsequent Financing, which shall be no earlier than ten (10) Trading Business Days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Eligible Purchaser an option (the “Rights Option”) during the ten (10) Trading Business Days following delivery of the Rights Notice (the “Option Period”) to inform the Company whether such Noteholder Eligible Purchaser will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing, provided that, the amount of such purchase shall not exceed such Eligible Purchaser’s Purchase Price hereunder except as allowed by the following sentence. If any Noteholder Eligible Purchaser elects not to participate in any such Subsequent Financing, the other Noteholder Eligible Purchasers may therein participate on a pro pro-rata basisbasis so long as such participation in the aggregate does not exceed the total Purchase Price hereunder. For purposes of this Section, all references to “pro rata” means, for any Noteholder Eligible Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number of Notes and/or Preferred Stock, (as the case may be), held Shares purchased by such Noteholder Eligible Purchaser at the Closing by (y) the total number of all of the Notes and/or Preferred Stock (as Shares purchased by all of the case may be), outstandingparticipating Eligible Purchasers at the Closing. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder any or all of Eligible Purchasers within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third partyset forth in the Rights Notice (or within sixty (60) days thereafter) without the participation of any or all of such Eligible Purchasers; provided that that, all of the material terms and conditions of the closing are the same as those provided to the Noteholder Eligible Purchasers in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur that dateon the scheduled closing date set forth in the Rights Notice (or within sixty (60) days thereafter), any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a3.23(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.23(a) shall not apply to issuances of securities in a Permitted Financing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “"Permitted Financing” " shall mean (i) securities issued pursuant to a bona fide acquisition of another business entity or business segment of any such entity by the Company pursuant to a merger, purchase of substantially all the assets or any type of reorganization (each an “Acquisition”) provided that (A) the Company will own more than fifty percent (50%) of the voting power of such business entity or business segment of such entity and (B) such Acquisition is approved by the Company’s Board of Directors; (ii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement or issued pursuant to this Agreement (so long as the terms governing the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Purchasers), ; (iiiii) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as such issuances are not for the primary purpose of raising capital; (iv) Common Stock issued or the issuance or grants of options to purchase Common Stock Stock, in each case, at no less than the then-applicable fair market value, pursuant to equity incentive plans that are adopted by the Company’s stock option plans and employee stock purchase plans that either Board of Directors; (xv) exist on the date hereof, or (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination), (iii) any warrants securities issued to the any placement agent and its respective designees for the transactions contemplated by this Agreement; (vi) securities issued at no less than the then-applicable fair market value to advisors or consultants (including, without limitation, financial advisors and investor relations firms) in connection with any engagement letter or consulting agreement, provided that any such issuance is approved by the Company’s Board of Directors; (vii) securities issued to financial institutions or lessors in connection with reasonable commercial credit arrangements, equipment financings or similar transactions, provided that any such issue is approved by the Company’s Board of Directors; (viii) securities issued to vendors or customers or to other persons in similar commercial situations as the Company, provided that any such issue is approved by the Company’s Board of Directors; and (ivix) securities issued in connection with a merger, consolidation, acquisition, strategic joint venture, or strategic partnership relationshipany recapitalization of the Company.

Subsequent Financings. (a) For a period of twelve one (121) months year following the effective date of the Registration Statement (as defined in the Registration Rights Agreement)Closing Date, the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “Rights Notice”) each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Purchaser of the terms and conditions of any proposed private offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to each Noteholder a Rights NoticeNotice to the Purchaser, the Company shall first deliver to each Noteholder the Purchaser a written notice of its the Company’s intention to effect a Subsequent Financing (“Pre-Notice”) within three (3) Trading Days of making or receiving an applicable offer, which Pre-Notice shall ask such Noteholder the Purchaser if it wants to review the details of such financing. Upon The Purchaser must notify the request of a Noteholder, and only upon a request by such Noteholder Company within three (3) Trading Days of receipt of the Pre-Notice that the Purchaser elects to review the details of such financing (“Pre-Notice Acceptance”). Upon the Company’s receipt of a Pre-NoticeNotice Acceptance, and only upon the Company’s receipt of a Pre-Notice Acceptance, the Company shall promptly, but no later than two (2) Trading Days after such requestreceipt, deliver a Rights Notice to such Noteholderthe Purchaser. The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known)Financing, the proposed closing date of the Subsequent Financing, which shall be no earlier than ten within twenty (1020) Trading Days calendar days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder the Purchaser an option (the “Rights Option”) during the ten five (105) Trading Days following delivery of the Rights Notice (the “Option Period”) to inform the Company whether such Noteholder the Purchaser will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. If any Noteholder elects not For the avoidance of doubt, the Purchaser may elect to participate in any such up to 100% of the Subsequent Financing, the other Noteholder may therein participate on a pro rata basis. For purposes of this Section, all references to “pro rata” means, for any Noteholder electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number of Notes and/or Preferred Stock, (as the case may be), held by such Noteholder at the Closing by (y) the total number of all of the Notes and/or Preferred Stock (as the case may be), outstanding. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder Purchaser within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; provided that all of the material terms and conditions of the closing are the same as those provided to the Noteholder Purchaser in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur within five (5) Trading Days of that date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a3.16(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.16(a) shall not apply to issuances of securities in a Permitted Financing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “Permitted Financing” shall mean (i) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement or issued pursuant to this Agreement (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Purchasers), (ii) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company’s stock option plans and employee stock purchase plans that either (x) exist on the date hereof, or (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination), (iii) any warrants issued to the placement agent and its designees for the transactions contemplated by this Agreement, and (iv) securities issued in connection with a merger, consolidation, acquisition, strategic joint venture, or strategic partnership relationship.

Subsequent Financings. (a) For a period of twelve (12) months one year following the effective date of the Registration Statement (as defined in the Registration Rights Agreement)Closing Date, the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “"Rights Notice”") each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Purchasers of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “"Subsequent Financing”"), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to each Noteholder a Rights Noticeincluding convertible debt securities (collectively, the Company shall first deliver to each Noteholder a written notice of its intention to effect a Subsequent "Financing (“Pre-Notice”) within three (3) Trading Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder if it wants to review the details of such financing. Upon the request of a Noteholder, and only upon a request by such Noteholder within three (3) Trading Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Trading Days after such request, deliver a Rights Notice to such NoteholderSecurities"). The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known)Financing, the proposed closing date of the Subsequent Financing, which shall be no earlier than ten within twenty (1020) Trading Days calendar days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Purchaser an option (the “"Rights Option”") during the ten five (105) Trading Days following delivery of the Rights Notice (the “"Option Period”") to inform the Company whether such Noteholder Purchaser will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. If any Noteholder Purchaser elects not to participate in any such Subsequent Financing, the other Noteholder Purchasers may therein participate on a pro pro-rata basisbasis so long as such participation in the aggregate does not exceed the total Purchase Price hereunder. The Company shall provide written notice to each participating Purchaser stating the names of any Purchasers who have elected not to participate in such Subsequent Financing. For purposes of this Section, all references to “"pro rata” " means, for any Noteholder Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number principal amount of the Notes and/or Preferred Stock, (as the case may be), held purchased by such Noteholder Purchaser at the Closing by (y) the total number principal amount of all of the Notes and/or Preferred Stock (as purchased by all of the case may be), outstandingparticipating Purchasers at the Closing. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder Purchasers within the Option Period, the Company shall have the right to close the Subsequent Financing (with respect to the portion of the Subsequent Financing in which the Purchasers have elected not to participate) on the scheduled closing date with a third party; provided that all of the material terms and conditions of the closing are the same as those provided to the Noteholder Purchasers in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur that within fifteen (15) calendar days of the scheduled closing date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a3.19(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.19(a) shall not apply to issuances of securities in a Permitted Financing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “"Permitted Financing” " shall mean mean: (i) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (ii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement or issued pursuant to this Agreement the terms hereof (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Purchasers), (iiiii) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as such issuances are not for the purpose of raising capital, (iv) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company’s 's stock option plans and employee stock purchase plans that either (x) outstanding as they exist on the date hereof, or (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination)Closing Date, (iiiv) any warrants issued to the placement agent and its designees for the transactions contemplated by this Agreement, and (ivvi) the payment of any dividends on the Company's Series B convertible preferred stock, (viii) securities issued pursuant to a bona fide firm underwritten public offering of the Company's securities, (ix) the payment of liquidated damages pursuant to the Registration Rights Agreement dated February 17, 2004 between the Company and the parties listed therein and (x) the issuance of Common Stock upon the exercise or conversion of any securities described in connection with a merger, consolidation, acquisition, strategic joint venture, or strategic partnership relationshipclauses (i) through (viii) above.

Subsequent Financings. (a) For a period of twelve one (121) months year following the following the effective date of the Registration Statement (as defined in registration statement providing for the Registration Rights Agreement)resale of the Conversion Shares and the Warrant Shares, the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “"Rights Notice”") each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Purchasers of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to each Noteholder a Rights Notice, the Company shall first deliver to each Noteholder a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”) within three (3) Trading Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder if it wants to review the details of such financing. Upon the request of a Noteholder, and only upon a request by such Noteholder within three (3) Trading Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Trading Days after such request, deliver a Rights Notice to such Noteholder. The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known)Financing, the proposed closing date of the Subsequent Financing, which shall be no earlier than ten within twenty (1020) Trading Days calendar days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Purchaser an option (the “Rights Option”) during the ten (10) Trading Days following delivery of the Rights Notice (the “Option Period”) to inform the Company whether such Noteholder Purchaser will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. If any Noteholder Purchaser elects not to participate in any such Subsequent Financing, the other Noteholder Purchasers may therein participate on a pro pro-rata basisbasis so long as such participation in the aggregate does not exceed the total Purchase Price hereunder. For purposes of this Section, all references to “pro rata” means, for any Noteholder Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number of Notes and/or Preferred Stock, (as the case may be), held Shares purchased by such Noteholder Purchaser at the each Closing by (y) the total number of all of the Notes and/or Preferred Stock (as Shares purchased by all of the case may be), outstandingparticipating Purchasers at each Closing. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder Purchasers within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; provided that all of the material terms and conditions of the closing are the same as those provided to the Noteholder Purchasers in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur on that date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a3.21(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.21(a) shall not apply to issuances of securities in a Permitted Financing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “"Permitted Financing” " shall mean (i) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (ii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement or issued pursuant to this Agreement (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Purchasers), (iiiii) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as such issuances are not for the purpose of raising capital, (iv) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company’s stock option plans and employee stock purchase plans that either (x) outstanding as they exist on the date hereofof this Agreement, or and (yv) do not exceed ten percent (10%) the payment of dividends on the outstanding Preferred Shares in shares of Common Stock pursuant to this Agreement or the Series A Convertible Preferred Stock Purchase Agreement dated as of April 12, 2006 by and among the Company as of and the date hereof purchasers named therein, and (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination), (iiivi) any warrants issued to the placement agent and its designees for the transactions contemplated by this the Purchase Agreement, and (iv) securities issued in connection with a merger, consolidation, acquisition, strategic joint venture, or strategic partnership relationship.

Subsequent Financings. (a) For a period of twelve (12) months following the effective date of the Registration Statement (as defined in the Registration Rights Agreement)last Closing, the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “Rights Notice”) each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Purchasers of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to each Noteholder Purchaser a Rights Notice, the Company shall first deliver to each Noteholder Eligible Purchaser a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”) within three five (35) Trading Business Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder Eligible Purchaser if it wants to review the details of such financing. Upon the request of a Noteholderan Eligible Purchaser, and only upon a request by such Noteholder Eligible Purchaser within three (3) Trading Business Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Trading Business Days after such request, deliver a Rights Notice to such NoteholderEligible Purchaser. The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known), the proposed closing date of the Subsequent Financing, which shall be no earlier than ten (10) Trading Business Days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Purchaser an option (the “Rights Option”) during the ten five (105) Trading Business Days following delivery of the Rights Notice (the “Option Period”) to inform the Company whether such Noteholder Eligible Purchaser will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. If any Noteholder elects not to participate in any such Subsequent Financing, provided that, the other Noteholder may therein participate on a pro rata basisamount of such purchase shall not exceed such Purchaser’s Purchase Price. For purposes of this Section, all references to “pro rata” means, for any Noteholder Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number of Notes and/or Preferred Stock, (as the case may be), held Note Shares purchased by such Noteholder Purchaser at the Closing by (y) the total number of all of the Notes and/or Preferred Stock (as Note Shares purchased by all of the case may be), outstandingPurchasers at the Closing. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder any or all of Eligible Purchasers within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third partyset forth in the Rights Notice (or within sixty (60) days thereafter) without the participation of any or all of such Purchasers; provided that that, all of the material terms and conditions of the closing are the same as those provided to the Noteholder Purchasers in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur that dateon the scheduled closing date set forth in the Rights Notice (or within sixty (60) days thereafter), any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a3.15(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.15(a) shall not apply to issuances of securities in a Permitted Financing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “Permitted Financing” shall mean mean: (i) securities issued pursuant to a bona fide acquisition of another business entity or business segment of any such entity by the Company pursuant to a merger, purchase of substantially all the assets or any type of reorganization (each an “Acquisition”) provided that (A) the Company will own more than fifty percent (50%) of the voting power of such business entity or business segment of such entity and (B) such Acquisition is approved by the Company’s Board of Directors and provided further that such securities are not issued for the purpose of raising capital and in which holders of such securities or debt are not at any time granted registration rights; (ii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement or issued pursuant to this Agreement (so long as the terms governing the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Purchasers), ; (iiiii) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as such issuances are not for the primary purpose of raising capital; (iv) Common Stock issued or the issuance or grants of options to purchase Common Stock Stock, in each case, at no less than the then-applicable fair market value, pursuant to equity incentive plans that are adopted by the Company’s stock option plans and employee stock purchase plans that either Board of Directors; (xv) exist on the date hereof, or (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination), (iii) any warrants securities issued to the any placement agent and its respective designees for the transactions contemplated by this Agreement; (vi) securities issued at no less than the then-applicable fair market value to advisors or consultants (including, without limitation, financial advisors and investor relations firms) in connection with any engagement letter or consulting agreement, provided that any such issuance is approved by the Company’s Board of Directors; (ivvii) securities issued to financial institutions or lessors in connection with reasonable commercial credit arrangements, equipment financings or similar transactions, provided that any such issue is approved by the Company’s Board of Directors; (viii) securities issued to vendors or customers or to other persons in similar commercial situations as the Company, provided that any such issue is approved by the Company’s Board of Directors; (ix) securities issued in connection with any recapitalization of the Company; or (x) securities issued pursuant to an underwritten public offering of the Common Stock. Notwithstanding anything contained herein to the contrary, although the Company shall be entitled to complete a mergerPermitted Financing, consolidation, acquisition, strategic joint venture, or strategic partnership relationshipall Permitted Financings shall rank junior to the Notes.

Subsequent Financings. (a) For a period of twelve (12) months following the effective date Without written consent of the Registration Statement Purchaser, the Company shall not undertake any Subsequent Financing (as defined in below) within three (3) months of the Registration Rights Agreement)Initial Closing. As long as any portion of the Note remains outstanding, the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “"Rights Notice”") each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Purchaser of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “"Subsequent Financing”"), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to each Noteholder the Purchaser a Rights Notice, the Company shall first deliver to each Noteholder the Purchaser a written notice of its intention to effect a Subsequent Financing (“"Pre-Notice”") within three five (35) Trading Business Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder the Purchaser if it wants to review the details of such financing. Upon the request of a Noteholderthe Purchaser, and only upon a request by such Noteholder Purchaser within three (3) Trading Business Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Trading Business Days after such request, deliver a Rights Notice to such NoteholderPurchaser. The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known), the proposed closing date of the Subsequent Financing, which shall be no earlier than ten (10) Trading Business Days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder the Purchaser an option (the “"Rights Option”") during the ten five (105) Trading Business Days following delivery of the Rights Notice (the “"Option Period”") to inform the Company whether such Noteholder Purchaser will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. If any Noteholder elects not to participate in any such Subsequent Financing, provided that, the other Noteholder amount the Purchaser may therein participate on a pro rata basis. For purposes of this Section, all references to “pro rata” means, for any Noteholder electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number of Notes and/or Preferred Stock, (as the case may be), held by such Noteholder at the Closing by (y) the total number of all of the Notes and/or Preferred Stock (as the case may be), outstandingpurchase shall not exceed $5,000,000. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price purchase price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder Purchaser within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third partyset forth in the Rights Notice (or within sixty (60) days thereafter) without the participation of such Purchaser; provided that that, all of the material terms and conditions of the closing are the same as those provided to the Noteholder Purchaser in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur that dateon the scheduled closing date set forth in the Rights Notice (or within sixty (60) days thereafter), any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a3.14(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.14(a) shall not apply to issuances of securities in a Permitted Financing. . In addition, in connection with the Rights Notice, the Purchaser's right to invest the additional $2,500,000, as set forth in Section 1.1, shall be accelerated and terminated by the end of the Option Period. The Purchaser shall promptly, but no later than five (b5) For purposes business days of receipt of the Rights Notice, inform the Company whether such Purchaser will exercise this Agreementright. If the Purchaser chooses to exercise this right, a Permitted Financing (as defined hereinafter) the Purchaser shall not be considered a Subsequent Financing. A “Permitted Financing” shall mean (i) securities issued pursuant deliver the purchase price to the conversion or Company within five (5) business days after it informs the Company of its intention to exercise of convertible or exercisable securities issued or outstanding on or prior the right. If the Purchaser does not deliver the purchase price within the required time period should it chooses to exercise this right, the date of this Agreement or issued pursuant Purchaser shall pay a break-up fee to this Agreement (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Purchasers), (ii) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company’s stock option plans and employee stock purchase plans that either (x) exist on the date hereof, or (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination), (iii) any warrants issued to the placement agent and its designees for the transactions contemplated by this Agreement, and (iv) securities issued set forth in connection with a merger, consolidation, acquisition, strategic joint venture, or strategic partnership relationshipSection 1.6.

Subsequent Financings. (a) For a period of twelve one (121) months year following the effective date of the Registration Statement (as defined in the Registration Rights Agreement), the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “"Rights ------ Notice”") each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Purchasers of the terms and conditions of any proposed offer or ------ sale to, or exchange with (or other type of distribution to) any third party (a “"Subsequent Financing”"), of Common Stock or any debt or --------------------- equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to each Noteholder Purchaser a Rights Notice, the -------- ------- Company shall first deliver to each Noteholder Purchaser a written notice of its intention to effect a Subsequent Financing (“"Pre-Notice”") within three (3) Trading Days of ---------- receiving an applicable offer, which Pre-Notice shall ask such Noteholder Purchaser if it wants to review the details of such financing. Upon the request of a NoteholderPurchaser, and only upon a request by such Noteholder Purchaser within three (3) Trading Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Trading Days after such request, deliver a Rights Notice to such NoteholderPurchaser. The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known), the proposed closing date of the Subsequent Financing, which shall be no earlier than ten within twenty (1020) Trading Days calendar days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Purchaser an option (the “"Rights Option”") during the ------------- ten (10) Trading Days following delivery of the Rights Notice (the “"Option ------ Period”") to inform the Company whether such Noteholder Purchaser will purchase up to its ------ pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. If any Noteholder Purchaser elects not to participate in any such Subsequent Financing, the other Noteholder Purchasers may therein participate on a pro pro-rata basisbasis so long as such participation in the aggregate does not exceed the total Purchase Price hereunder. For purposes of this Section, all references to “"pro --- rata” " means, for any Noteholder Purchaser electing to participate in such Subsequent ---- Financing, the percentage obtained by dividing (x) the number principal amount of the Notes and/or Preferred Stock, (as the case may be), held purchased by such Noteholder Purchaser at the Closing by (y) the total number principal amount of all of the Notes and/or Preferred Stock (as purchased by all of the case may be), outstandingparticipating Purchasers at the Closing. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder Purchasers within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; provided -------- that all of the material terms and conditions of the closing are the same as those provided to the Noteholder Purchasers in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur on that date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a3.19(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.19(a) shall not apply to issuances of securities in a Permitted Financing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “"Permitted --------- Financing” " shall mean (i) securities issued (other than for cash) in connection --------- with a merger, acquisition, or consolidation, (ii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement or issued pursuant to this Agreement (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Purchasers), (iiiii) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as such issuances are not for the purpose of raising capital, (iv) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company’s 's stock option plans and employee stock purchase plans that either (x) outstanding as they exist on the date hereofof this Agreement, or and (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination), (iiiv) any warrants issued to the placement agent and its designees for the transactions contemplated by this the Purchase Agreement, and (iv) securities issued in connection with a merger, consolidation, acquisition, strategic joint venture, or strategic partnership relationship.

Subsequent Financings. (a) For a period of twelve two (122) months years following the effective date of the initial Registration Statement (as defined in the Registration Rights Agreement), the Company covenants and agrees to promptly notify (in no event later than five ten (510) days after making or receiving an applicable offer) in writing (a “Rights Notice”) each holder of Notes and/or Preferred Stock Shares (as the case may beeach, each a “NoteholderPreferred Stockholder” and collectively the “NoteholdersPreferred Stockholders”) of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”)party, of Common Stock or Stock, any debt or equity securities convertible, exercisable or exchangeable into Common StockStock or any debt securities (a “Subsequent Financing”); provided, however, prior to delivering to each Noteholder Preferred Stockholder a Rights Notice, the Company shall first deliver to each Noteholder Preferred Stockholder a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”) within three (3) Trading Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder Preferred Stockholder if it wants to review the details of such financing. Upon the request of a NoteholderPreferred Stockholder, and only upon a request by such Noteholder Preferred Stockholder within three (3) Trading Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Trading Days after such request, deliver a Rights Notice to such NoteholderPreferred Stockholder. The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known), the proposed closing date of the Subsequent Financing, which shall be no earlier than ten (10) Trading Days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Preferred Stockholder an option (the “Rights Option”) during the ten (10) Trading Days following delivery of the Rights Notice (the “Option Period”) to inform the Company whether such Noteholder Preferred Stockholder will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. If any Noteholder Preferred Stockholder elects not to participate in any such Subsequent Financing, the other Noteholder Preferred Stockholders may therein participate on a pro pro-rata basis. For purposes of this Section, all references to “pro rata” means, for any Noteholder Preferred Stockholder electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number of Notes and/or Preferred Stock, (as the case may be), Shares held by such Noteholder at the Closing Preferred Stockholder by (y) the total number of all of the Notes and/or Preferred Stock (as the case may be), outstandingShares issued hereunder. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder Preferred Stockholder within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; provided provided, that all of the material terms and conditions of the closing are the same as those provided to the Noteholder Preferred Stockholder in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur that date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a3.23(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.23(a) shall not apply to issuances of securities in a Permitted Financing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “Permitted Financing” shall mean (i) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (ii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement or issued pursuant to this Agreement or any of the other Transaction Documents (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the PurchasersPurchaser), (iiiii) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as such issuances are not for the purpose of raising capital, (iv) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company’s stock option plans and employee stock purchase plans that either (x) outstanding as they exist on the date hereofof this Agreement, or and (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination), (iiiv) any warrants issued to the placement agent agent, financial advisors and its their respective designees for the transactions contemplated by this Agreement, and (iv) securities issued in connection with a merger, consolidation, acquisition, strategic joint venture, or strategic partnership relationshipthe Transaction Documents.

Subsequent Financings. (a) For a period of twelve (12) months following the effective date of the Registration Statement (as defined in the Registration Rights Agreement), the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “Rights Notice”) each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to each Noteholder a Rights Notice, the Company shall first deliver to each Noteholder a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”) within three (3) Trading Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder if it wants to review the details of such financing. Upon the request of a Noteholder, and only upon a request by such Noteholder within three (3) Trading Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Trading Days after such request, deliver a Rights Notice to such Noteholder. The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known), the proposed closing date of the Subsequent Financing, which shall be no earlier than ten (10) Trading Days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder an option (the “Rights Option”) during the ten (10) Trading Days following delivery of the Rights Notice (the “Option Period”) to inform the Company whether such Noteholder will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. If any Noteholder elects not to participate in any such Subsequent Financing, the other Noteholder Noteholders may therein participate on a pro rata basis. For purposes of this Section, all references to “pro rata” means, for any Noteholder electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number of Notes and/or Preferred Stock, (as the case may be), held by such Noteholder at as of the most recent Closing Date by (y) the total number of all of the Notes and/or Preferred Stock (Notes, outstanding as the case may be), outstandingof such date. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the a Noteholder within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; provided that all of the material terms and conditions of the closing are the same as those provided to the Noteholder Noteholders in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur that date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a) shall not apply to issuances of securities in a Permitted Financing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “Permitted Financing” shall mean (i) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement or issued pursuant to this Agreement (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Purchasers), (ii) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company’s stock option plans and employee stock purchase plans that either (x) exist on the date hereof, or (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determinationNote), (iii) any warrants issued to the placement agent and its designees for the transactions contemplated by this Agreement, and (iviii) securities issued in connection with a merger, consolidation, acquisition, strategic joint venture, or strategic partnership relationship.

Subsequent Financings. (a) For a period of twelve one (121) months year following the effective date of following the Registration Statement (as defined in the Registration Rights Agreement)Closing Date, the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “Rights Notice”) each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Purchaser of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, that prior to delivering a Rights Notice to each Noteholder a Rights NoticePurchaser, the Company shall first deliver to each Noteholder Purchaser a written notice of its the Company’s intention to effect a Subsequent Financing (“Pre-Notice”) within three (3) Trading Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder Purchaser if it wants to review the details of such financing. Upon Each Purchaser must notify the request of a Noteholder, and only upon a request by such Noteholder Company within three (3) Trading Days of receipt of the Pre-Notice that such Purchaser elects to review the details of such financing (“Pre-Notice Acceptance”). Upon the Company’s receipt of a Pre-NoticeNotice Acceptance, and only upon the Company’s receipt of a Pre-Notice Acceptance, the Company shall promptly, but no later than two (2) Trading Days after such requestreceipt, deliver a Rights Notice to such NoteholderPurchaser. The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if knownknown at such time), the proposed closing date of the Subsequent Financing, which shall be no earlier than ten within twenty (1020) Trading Days calendar days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Purchaser an option (the “Rights Option”) during the ten (10) Trading Days following delivery of the Rights Notice (the “Option Period”) to inform the Company whether such Noteholder Purchaser will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. If any Noteholder Purchaser elects not to participate in any such Subsequent Financing, the other Noteholder Purchasers may therein participate on a pro pro-rata basisbasis so long as such participation in the aggregate does not exceed the aggregate Purchase Price of all Purchasers hereunder. For purposes of this Section, all references to “pro rata” means, for any Noteholder Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number of Notes and/or Preferred Stock, (as the case may be), held Shares purchased by such Noteholder Purchaser at the Closing by (y) the total number of all of the Notes and/or Preferred Stock (as Shares purchased by all of the case may be), outstandingparticipating Purchasers at the Closing. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price purchase price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder Purchasers within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; provided that all of the material terms and conditions of the closing are the same as those provided to the Noteholder Purchasers in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur on that date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a) shall not apply to issuances of securities in a Permitted FinancingFinancing (as defined hereinafter). (b) Except for a Permitted Financing, the Company shall not enter into any Subsequent Financing for a period of ninety (90) days following the effective date of any initial registration statement. (c) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “Permitted Financing” shall mean (i) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (ii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement or issued pursuant to this Agreement (so long as the conversion or exercise price in of such securities are not amended to lower such price price, except as a result of stock dividends, subdivisions or combinations, and/or adversely affect the Purchasers), (ii) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company’s stock option plans and employee stock purchase plans that either (x) exist on the date hereof, or (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination), (iii) any warrants issued to the placement agent and its designees for the transactions contemplated by this Agreement, and (iv) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as such issuances are not for the purpose of raising capital, (iv) shares of Common Stock issued for consideration per share of at least $1.75 (as adjusted for any stock dividend, stock split, stock combination, reclassification or similar transaction) or options with an exercise price of at least $1.75 per share (as adjusted for any stock dividend, stock split, stock combination, reclassification or similar transaction), in each case, issued to employees, officers, consultants or directors of the Company pursuant to any stock or option plan duly adopted for such purpose by a merger, consolidation, acquisition, strategic joint venture, majority of the non-employee members of the Board of Directors or strategic partnership relationshipa majority of the members of a committee of non-employee directors established for such purpose and (v) the payment of dividends on the Preferred Shares in shares of Common Stock or additional Preferred Shares.

Subsequent Financings. (a) For a period of twelve one (121) months year following the effective date of the Registration Statement (as defined in the Registration Rights Agreement), the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “"Rights Notice”") each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Purchasers of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “"Subsequent Financing”"), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to each Noteholder Purchaser a Rights Notice, the Company shall first deliver to each Noteholder Purchaser a written notice of its intention to effect a Subsequent Financing (“"Pre-Notice”") within three (3) Trading Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder Purchaser if it wants to review the details of such financing. Upon the request of a NoteholderPurchaser, and only upon a request by such Noteholder Purchaser within three (3) Trading Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Trading Days after such request, deliver a Rights Notice to such NoteholderPurchaser. The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known), the proposed closing date of the Subsequent Financing, which shall be no earlier than ten (10) Trading Days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Purchaser an option (the “"Rights Option”") during the ten (10) Trading Days following delivery of the Rights Notice (the “"Option Period”") to inform the Company whether such Noteholder Purchaser will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing, provided the amount of such purchase shall not exceed such Purchaser's Purchase Price hereunder except as allowed by the following sentence. If any Noteholder Purchaser elects not to participate in any such Subsequent Financing, the other Noteholder Purchasers may therein participate on a pro pro-rata basisbasis so long as such participation in the aggregate does not exceed the total Purchase Price hereunder. For purposes of this Section, all references to “"pro rata” " means, for any Noteholder Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number of Notes and/or Preferred Stock, (as the case may be), held Shares purchased by such Noteholder Purchaser at the Closing by (y) the total number of all of the Notes and/or Preferred Stock (as Shares purchased by all of the case may be), outstandingparticipating Purchasers at the Closing. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder any or all of Purchasers within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third partyset forth in the Rights Notice (or within thirty (30) days thereafter) without the participation of any or all of such Purchasers; provided that all of the material terms and conditions of the closing are the same as those provided to the Noteholder Purchasers in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur that dateon the scheduled closing date set forth in the Rights Notice (or within thirty (30) days thereafter), any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a3.23(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.23(a) shall not apply to issuances of securities in a Permitted Financing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “"Permitted Financing” " shall mean (i) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (ii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement or issued pursuant to this Agreement (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Purchasers), (iiiii) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as such issuances are not for the purpose of raising capital, (iv) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company’s 's stock option plans and employee stock purchase plans that either (x) outstanding as they exist on the date hereofof this Agreement, or and (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination), (iiiv) any warrants issued to the placement agent and its designees for the transactions contemplated by this the Purchase Agreement, and (iv) securities issued in connection with a merger, consolidation, acquisition, strategic joint venture, or strategic partnership relationship.

Subsequent Financings. (a) For There shall not be any Subsequent Financings for a period of twelve Ninety (1290) months days after the Closing Date of this financing. Thereafter, for the remainder of one (1) year following the effective date of Closing Date so long as the Registration Statement (as defined in the Registration Rights Agreement)Notes remain outstanding, the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “"Rights Notice”") each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Purchasers of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “"Subsequent Financing”"), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to each Noteholder a Rights Noticeincluding convertible debt securities (collectively, the Company shall first deliver to each Noteholder a written notice of its intention to effect a Subsequent "Financing (“Pre-Notice”) within three (3) Trading Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder if it wants to review the details of such financing. Upon the request of a Noteholder, and only upon a request by such Noteholder within three (3) Trading Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Trading Days after such request, deliver a Rights Notice to such NoteholderSecurities"). The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known)Financing, the proposed closing date of the Subsequent Financing, which shall be no earlier than ten within twenty (1020) Trading Days calendar days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Purchaser an option (the “"Rights Option”") during the ten (10) Trading Days following delivery of the Rights Notice (the “"Option Period”") to inform the Company whether such Noteholder Purchaser will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. If any Noteholder Purchaser elects not to participate in any such Subsequent Financing, the other Noteholder Purchasers may therein participate on a pro pro-rata basisbasis so long as such participation in the aggregate does not exceed the total Purchase Price hereunder. For purposes of this Section, all references to “"pro rata” " means, for any Noteholder Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number principal amount of the Notes and/or Preferred Stock, (as the case may be), held purchased by such Noteholder Purchaser at the each Closing by (y) the total number principal amount of all of the Notes and/or Preferred Stock (as purchased by all of the case may be), outstandingparticipating Purchasers at each Closing. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder Purchasers within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; provided that all of the material terms and conditions of the closing are substantially the same as those provided to the Noteholder Purchasers in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur on that date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a) shall not apply to issuances of securities in a Permitted Financing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “"Permitted Financing” " shall mean (i) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (ii) securities issued pursuant to a bona fide firm underwritten public offering of the Company's securities, (iii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement hereof or issued pursuant to this Agreement and the Notes, (iv) the Warrant Shares, (v) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as the conversion or exercise price in such securities issuances are not amended to lower such price and/or adversely affect for the Purchasers)purpose of raising capital, (iivi) Common Stock issued or the issuance or grants of options to purchase Common Stock granted or issued pursuant to the Company’s stock option plans and 's employee stock purchase plans that either (x) as they now exist on the date hereof, or (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company and stock incentive plans as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination)they now exist, (iiivii) any warrants issued to the placement agent and its designees for the transactions contemplated by this Agreement, and (ivviii) securities issued the payment of any principal and accrued interest in connection with a merger, consolidation, acquisition, strategic joint venture, or strategic partnership relationshipshares of Common Stock pursuant to the Notes.

Subsequent Financings. (a) For a period of twelve (12) months following so long as the effective date of the Registration Statement (as defined in the Registration Rights Agreement)Notes remain outstanding, the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “Rights Notice”) each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Purchasers of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to each Noteholder a Rights Noticeincluding convertible debt securities (collectively, the Company shall first deliver to each Noteholder a written notice of its intention to effect a Subsequent “Financing (“Pre-NoticeSecurities”) within three (3) Trading Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder if it wants to review the details of such financing. Upon the request of a Noteholder, and only upon a request by such Noteholder within three (3) Trading Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Trading Days after such request, deliver a Rights Notice to such Noteholder). The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known)Financing, the proposed closing date of the Subsequent Financing, which shall be no earlier than ten within twenty (1020) Trading Days calendar days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Purchaser an option (the “Rights Option”) during the ten (10) Trading Days following delivery of the Rights Notice (the “Option Period”) to inform the Company whether such Noteholder Purchaser will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. If any Noteholder Purchaser elects not to participate in any such Subsequent Financing, the other Noteholder Purchasers may therein participate on a pro pro-rata basisbasis so long as such participation in the aggregate does not exceed the total Purchase Price hereunder. For purposes of this Section, all references to “pro rata” means, for any Noteholder Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number principal amount of the Notes and/or Preferred Stock, (as the case may be), held purchased by such Noteholder Purchaser at the each Closing by (y) the total number principal amount of all of the Notes and/or Preferred Stock (as purchased by all of the case may be), outstandingparticipating Purchasers at each Closing. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date each Closing Date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder Purchasers within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; provided that all of the material terms and conditions of the closing are substantially the same as those provided to the Noteholder Purchasers in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur on that date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a) shall not apply to issuances of securities in a Permitted Financing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “Permitted Financing” shall mean (i) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (ii) securities issued pursuant to a bona fide firm underwritten public offering of the Company’s securities, (iii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement hereof or issued pursuant to this Agreement and the Notes, (iv) the Warrant Shares, (v) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as the conversion or exercise price in such securities issuances are not amended to lower such price and/or adversely affect for the Purchasers)purpose of raising capital, (iivi) Common Stock issued or the issuance or grants of options to purchase Common Stock granted or issued pursuant to the Company’s stock option plans and employee stock purchase plans that either (x) as they now exist on the date hereof, or (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company and stock incentive plans as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination)they now exist, (iiivii) any warrants issued to the placement agent and its designees for the transactions contemplated by this Agreement, and (ivviii) securities the payment of any principal and accrued interest in shares of Common Stock pursuant to the Notes or any other notes issued in connection prior or concurrently with a merger, consolidation, acquisition, strategic joint venture, or strategic partnership relationshipthe Closing Date.

Subsequent Financings. (a) For a period of twelve one (121) months year following the effective date of following the Registration Statement (as defined in the Registration Rights Agreement)Closing Date, the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “Rights Notice”) each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Purchaser of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, that prior to delivering a Rights Notice to each Noteholder a Rights NoticePurchaser, the Company shall first deliver to each Noteholder Purchaser a written notice of its the Company’s intention to effect a Subsequent Financing (“Pre-Notice”) within three (3) Trading Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder Purchaser if it wants to review the details of such financing. Upon Each Purchaser must notify the request of a Noteholder, and only upon a request by such Noteholder Company within three (3) Trading Days of receipt of the Pre-Notice that such Purchaser elects to review the details of such financing (“Pre-Notice Acceptance”). Upon the Company’s receipt of a Pre-NoticeNotice Acceptance, and only upon the Company’s receipt of a Pre-Notice Acceptance, the Company shall promptly, but no later than two (2) Trading Days after such requestreceipt, deliver a Rights Notice to such NoteholderPurchaser. The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if knownknown at such time), the proposed closing date of the Subsequent Financing, which shall be no earlier than ten within twenty (1020) Trading Days calendar days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Purchaser an option (the “Rights Option”) during the ten (10) Trading Days following delivery of the Rights Notice (the “Option Period”) to inform the Company whether such Noteholder Purchaser will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. If any Noteholder Purchaser elects not to participate in any such Subsequent Financing, the other Noteholder Purchasers may therein participate on a pro pro-rata basisbasis so long as such participation in the aggregate does not exceed the aggregate Purchase Price of all Purchasers hereunder. For purposes of this Section, all references to “pro rata” means, for any Noteholder Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number of Notes and/or Preferred Stock, (as the case may be), held Shares purchased by such Noteholder Purchaser at the Closing by (y) the total number of all of the Notes and/or Preferred Stock (as Shares purchased by all of the case may be), outstandingparticipating Purchasers at the Closing. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price purchase price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder Purchasers within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; provided that all of the material terms and conditions of the closing are the same as those provided to the Noteholder Purchasers in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur on that date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a3.20(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.20(a) shall not apply to issuances of securities in a Permitted FinancingFinancing (as defined hereinafter). (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “Permitted Financing” shall mean (i) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (ii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement or issued pursuant to this Agreement (so long as the conversion or exercise price in of such securities are not amended to lower such price price, except as a result of stock dividends, subdivisions or combinations, and/or adversely affect the Purchasers), (ii) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company’s stock option plans and employee stock purchase plans that either (x) exist on the date hereof, or (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination), (iii) any warrants issued to the placement agent and its designees for the transactions contemplated by this Agreement, and (iv) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as such issuances are not for the purpose of raising capital, (iv) shares of Common Stock issued for consideration per share of at least $1.75 (as adjusted for any stock dividend, stock split, stock combination, reclassification or similar transaction) or options with an exercise price of at least $1.75 per share (as adjusted for any stock dividend, stock split, stock combination, reclassification or similar transaction), in each case, issued to employees, officers, consultants or directors of the Company pursuant to any stock or option plan duly adopted for such purpose by a merger, consolidation, acquisition, strategic joint venture, majority of the non-employee members of the Board of Directors or strategic partnership relationshipa majority of the members of a committee of non-employee directors established for such purpose and (v) the payment of dividends on the Preferred Shares in shares of Common Stock or additional Preferred Shares.

Subsequent Financings. Each Investor in this Offering investing $2,000,000 or greater (aincluding any amounts represented by the Prior Securities being exchanged for the Units herein) (the “Lead Investor”) shall be entitled to the following: (A) For a period of twelve fifteen (1215) months following the effective date of the Registration Statement (as defined in the Registration Rights Agreement)Public Offering, the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “"Rights Notice”") each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Investor of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”)party, of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to each Noteholder a Rights Notice, Stock or other securities of the Company shall first deliver to each Noteholder a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”) within three (3) Trading Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder if it wants to review the details of such financing. Upon the request of a Noteholder, and only upon a request by such Noteholder within three (3) Trading Days of receipt of a Pre-Notice, that the Company shall promptly, but no later than two chooses to accept (2) Trading Days after such request, deliver a Rights Notice to such Noteholder“Subsequent Financing”). The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known)Financing, the proposed closing date of the Subsequent Financing, which shall be no earlier than ten within twenty (1020) Trading Days calendar days from the date of the Rights Notice, and all of the material terms and conditions thereof and proposed definitive documentation to be entered into in connection therewiththereof. The Rights Notice shall provide each Noteholder the Investor an option (the “Rights Option”) during the ten (10) Trading Days following delivery of the Rights Notice (the “Option Period”) to inform the Company whether such Noteholder Investor will purchase up to its pro rata portion of all or a portion 50% of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. If any Noteholder elects Financing and the amount of securities the Investor will purchase, which shall not to participate in any such Subsequent Financing, the other Noteholder may therein participate on a pro rata basis. For purposes of this Section, all references to “pro rata” means, for any Noteholder electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number of Notes and/or Preferred Stock, (as the case may be), held by such Noteholder at the Closing by (y) the total number of all of the Notes and/or Preferred Stock (as the case may be), outstandingexceed $2,000,000. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise otherwise, except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder Investor within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; provided that all of the material terms and conditions of the closing are the same as those provided to the Noteholder Purchaser in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur on that date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a), 11(A) including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a11(A) shall not apply to issuances of securities in a Permitted Financing. (bB) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “"Permitted Financing” " shall mean (i) securities issued in a Public Offering, (ii) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (iii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement or issued pursuant to this Agreement (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the PurchasersInvestor), (iiiv) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as such issuances are not for the primary purpose of raising capital, (v) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company’s stock option plans and employee stock purchase plans that either (x) exist on the date hereofplans, or (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination)and, (iiivi) any warrants issued to the placement agent and its designees for the transactions contemplated by this Agreement, and (iv) securities issued in connection with a merger, consolidation, acquisition, strategic joint venture, or strategic partnership relationshipthe Offering Documents.

Subsequent Financings. (a) For a period of twelve (12) months following so long as the effective date of the Registration Statement (as defined in the Registration Rights Agreement)Notes remain outstanding, the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “Rights Notice”) each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Purchasers of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to each Noteholder a Rights Noticeincluding convertible debt securities (collectively, the Company shall first deliver to each Noteholder a written notice of its intention to effect a Subsequent “Financing (“Pre-NoticeSecurities”) within three (3) Trading Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder if it wants to review the details of such financing. Upon the request of a Noteholder, and only upon a request by such Noteholder within three (3) Trading Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Trading Days after such request, deliver a Rights Notice to such Noteholder). The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known)Financing, the proposed closing date of the Subsequent Financing, which shall be no earlier than within ten (10) Trading Days calendar days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Purchaser an option (the “Rights Option”) during the ten three (103) Trading Days following delivery of the Rights Notice (the “Option Period”) to inform the Company whether such Noteholder Purchaser will purchase securities in such Subsequent Financing, up to its pro rata portion of all or a portion (as described below) of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. If any Noteholder Purchaser elects not to participate in any such Subsequent Financing, the other Noteholder Purchasers may therein participate on a pro pro-rata basis. For purposes of this Section, all references to “pro rata” means, for any Noteholder Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number principal amount of the Notes and/or Preferred Stock, (as the case may be), held purchased by such Noteholder Purchaser at the Closing by (y) the total number principal amount of all of the Notes and/or Preferred Stock (as purchased by all of the case may be), outstandingparticipating Purchasers at the Closing. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder Purchasers within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; provided that all of the material terms and conditions of the closing are substantially the same as those provided to the Noteholder Purchasers in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur on that date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a3.19(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.19(a) shall not apply to issuances of securities in a Permitted FinancingFinancing or with respect to any Purchaser that holds less than 10% of the Notes issued to it upon the Closing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “Permitted Financing” shall mean (iany financing described in Section 3.5(c) securities issued pursuant to of the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement or issued pursuant to this Agreement (so long Notes as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Purchasers), (ii) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company’s stock option plans and employee stock purchase plans that either (x) exist effect on the date hereof, or (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination), (iii) any warrants issued to the placement agent and its designees for the transactions contemplated by this Agreement, and (iv) securities issued in connection with a merger, consolidation, acquisition, strategic joint venture, or strategic partnership relationship.

Subsequent Financings. (a) For a period of twelve one (121) months year following the effective date of Closing Date so long as the Registration Statement (as defined in the Registration Rights Agreement)Notes remain outstanding, the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “Rights Notice”) each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Purchasers of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to each Noteholder a Rights Noticeincluding convertible debt securities (collectively, the Company shall first deliver to each Noteholder a written notice of its intention to effect a Subsequent “Financing (“Pre-NoticeSecurities”) within three (3) Trading Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder if it wants to review the details of such financing. Upon the request of a Noteholder, and only upon a request by such Noteholder within three (3) Trading Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Trading Days after such request, deliver a Rights Notice to such Noteholder). The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known)Financing, the proposed closing date of the Subsequent Financing, which shall be no earlier than ten within twenty (1020) Trading Days calendar days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Purchaser an option (the “Rights Option”) during the ten (10) Trading Days following delivery of the Rights Notice (the “Option Period”) to inform the Company whether such Noteholder Purchaser will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. If any Noteholder Purchaser elects not to participate in any such Subsequent Financing, the other Noteholder Purchasers may therein participate on a pro pro-rata basisbasis so long as such participation in the aggregate does not exceed the total Purchase Price hereunder. For purposes of this Section, all references to “pro rata” means, for any Noteholder Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number principal amount of the Notes and/or Preferred Stock, (as the case may be), held purchased by such Noteholder Purchaser at the each Closing by (y) the total number principal amount of all of the Notes and/or Preferred Stock (as purchased by all of the case may be), outstandingparticipating Purchasers at each Closing. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder Purchasers within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; provided that all of the material terms and conditions of the closing are substantially the same as those provided to the Noteholder Purchasers in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur on that date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a) shall not apply to issuances of securities in a Permitted Financing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “Permitted Financing” shall mean (i) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (ii) securities issued pursuant to a bona fide firm underwritten public offering of the Company’s securities, (iii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement hereof or issued pursuant to this Agreement and the Notes, (iv) the Warrant Shares, (v) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as the conversion or exercise price in such securities issuances are not amended to lower such price and/or adversely affect for the Purchasers)purpose of raising capital, (iivi) Common Stock issued or the issuance or grants of options to purchase Common Stock granted or issued pursuant to the Company’s stock option plans and employee stock purchase plans that either (x) as they now exist on the date hereof, or (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company and stock incentive plans as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination)they now exist, (iiivii) any warrants issued to the placement agent and its designees for the transactions contemplated by this Agreement, and (ivviii) securities issued the payment of any principal and accrued interest in connection with a merger, consolidation, acquisition, strategic joint venture, or strategic partnership relationshipshares of Common Stock pursuant to the Notes.

Subsequent Financings. (a) For a period of twelve one (121) months year following the effective date of the Registration Statement (as defined in the Registration Rights Agreement)Closing Date, the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “Rights Notice”) each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Purchaser of the terms and conditions of any proposed private offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to each Noteholder a Rights NoticeNotice to the Purchaser, the Company shall first deliver to each Noteholder the Purchaser a written notice of its the Company’s intention to effect a Subsequent Financing (“Pre-Notice”) within three (3) Trading Days of making or receiving an applicable offer, which Pre-Notice shall ask such Noteholder the Purchaser if it wants to review the details of such financing. Upon The Purchaser must notify the request of a Noteholder, and only upon a request by such Noteholder Company within three (3) Trading Days of receipt of the Pre-Notice that the Purchaser elects to review the details of such financing (“Pre-Notice Acceptance”). Upon the Company’s receipt of a Pre-NoticeNotice Acceptance, and only upon the Company’s receipt of a Pre-Notice Acceptance, the Company shall promptly, but no later than two (2) Trading Days after such requestreceipt, deliver a Rights Notice to such Noteholderthe Purchaser. The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known)Financing, the proposed closing date of the Subsequent Financing, which shall be no earlier than ten within twenty (1020) Trading Days calendar days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder the Purchaser an option (the “Rights Option”) during the ten five (105) Trading Days following delivery of the Rights Notice (the “Option Period”) to inform the Company whether such Noteholder the Purchaser will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. For the avoidance of doubt, the Purchaser may elect to participate in up to 100% of the Subsequent Financing. If any Noteholder Purchaser elects not to participate in any such Subsequent Financing, the other Noteholder Purchaser may therein participate on a pro pro-rata basisbasis so long as such participation in the aggregate does not exceed the aggregate Purchase Price of all Purchaser hereunder. For purposes of this Section, all references to “pro rata” means, for any Noteholder Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number principal amount of the Notes and/or Preferred Stock, (as purchased by the case may be), held by such Noteholder Purchaser at the Closing by (y) the total number principal amount of all of the Notes and/or Preferred Stock (as purchased by all of the case may be), outstandingparticipating Purchaser at the Closing. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder Purchaser within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; provided that all of the material terms and conditions of the closing are the same as those provided to the Noteholder Purchaser in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur within five (5) Trading Days of that date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a3.20(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.20(a) shall not apply to issuances of securities in a Permitted Financing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “Permitted Financing” shall mean (i) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement or issued pursuant to this Agreement (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Purchasers), (ii) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company’s stock option plans and employee stock purchase plans that either (x) exist on the date hereof, or (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination), (iii) any warrants issued to the placement agent and its designees for the transactions contemplated by this Agreement, and (iv) securities issued in connection with a merger, consolidation, acquisition, strategic joint venture, or strategic partnership relationship.

Subsequent Financings. (aA) For a period of twelve one (121) months year following the effective date of Closing Date (which one-year period shall extend for each day that the Registration Statement (is not effective as defined in required under the Registration Rights Agreement), the Company RDI covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “"Rights Notice”") each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) BMSI of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “"Subsequent Financing”"), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock, including convertible debt securities (collectively, the "Financing Securities"); provided, however, prior to delivering to each Noteholder BMSI a Rights Notice, the Company RDI shall first deliver to each Noteholder BMSI a written notice of its intention to effect a Subsequent Financing (“"Pre-Notice”") within three (3) Trading Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder BMSI if it wants to review the details of such financing. Upon the request of a NoteholderBMSI, and only upon a request by such Noteholder BMSI within three (3) Trading Days of receipt of a Pre-Notice, the Company RDI shall promptly, but no later than two (2) Trading Days after such request, deliver a Rights Notice to such NoteholderBMSI. The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known)Financing, the proposed closing date of the Subsequent Financing, which shall be no earlier than ten within twenty (1020) Trading Days calendar days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder BMSI an option (the “"Rights Option”") during the ten (10) Trading Days following delivery of the Rights Notice (the “"Option Period”") to inform the Company RDI whether such Noteholder BMSI will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. If any Noteholder elects not to participate in any such Subsequent Financing, the other Noteholder may therein participate on a pro rata basis. For purposes of this Section, all references to “"pro rata” " means, for any Noteholder Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number principal amount of Notes and/or Preferred Stock, (as the case may be), held by such Noteholder at the Closing Note by (y) the sum of (1) the principal amount of the Notes and (2) the total number principal amount of all of the Notes and/or Preferred Stock (as series B notes purchased pursuant to the case may be), outstandingNote Purchase Agreement. Delivery of any Rights Notice constitutes a representation and warranty by the Company RDI that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company RDI does not receive notice of exercise of the Rights Option from the Noteholder BMSI within the Option Period, the Company RDI shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; provided that all of the material terms and conditions of the closing are the same as those provided to the Noteholder BMSI in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur on that date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a5.02(r), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a5.02(r) shall not apply to issuances of securities in a Permitted Financing. (bB) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “"Permitted Financing” " shall mean (i1) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (2) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement hereof or issued pursuant to this Agreement and the Note, including the Conversion Shares, (3) the Warrant Shares, (4) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as the conversion or exercise price in such securities issuances are not amended to lower such price and/or adversely affect for the Purchasers)purpose of raising capital, (ii5) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company’s RDI's stock option plans and employee stock purchase plans that either (x) as they now exist on the date hereof, or (y6) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination), (iii) any warrants issued to the placement agent and its designees for the transactions contemplated by this Agreement, and (iv) securities issued in connection with a merger, consolidation, acquisition, strategic joint venture, consulting or strategic partnership relationshipadvisory services not in excess of 5,000,000 shares; and (7) the payment of any principal in shares of Common Stock pursuant to the Notes.

Subsequent Financings. (a) For a period of twelve two (122) months years following the effective date of the Registration Statement (as defined in registration statement providing for the Registration Rights Agreement)resale of the Conversion Shares and the Warrant Shares, the Company covenants and agrees to promptly notify (in no event later than five (5) business days after making or receiving an applicable offer) in writing (a “"Rights Notice”") each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Series B Purchasers of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) to any third party (a “Subsequent Financing”)by the Company, of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to each Noteholder Stock (a Rights Notice, the Company shall first deliver to each Noteholder a written notice of its intention to effect a “Subsequent Financing (“Pre-NoticeFinancing”) within three (3) Trading Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder if it wants to review the details of such financing. Upon the request of a Noteholder, and only upon a request by such Noteholder within three (3) Trading Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Trading Days after such request, deliver a Rights Notice to such Noteholder). The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known)Financing, the proposed closing date of the Subsequent Financing, which shall be no earlier than ten within twenty (1020) Trading Days calendar days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Series B Purchaser an option (the “Rights Option”) during the ten (10) Trading Days following delivery of the Rights Notice (the “Option Period”) to inform the Company whether such Noteholder Series B Purchaser will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. If any Noteholder Series B Purchaser elects not to participate in any such Subsequent Financing, the other Noteholder Series B Purchasers may therein participate on a pro pro-rata basisbasis so long as such participation in the aggregate does not exceed the total Purchase Price hereunder. For purposes of this Section, all references to “pro rata” means, for any Noteholder Series B Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number of Notes and/or Preferred Stock, (as the case may be), held Shares purchased by such Noteholder Purchaser at the Closing plus the number of shares of Series B Convertible Preferred Stock purchased by the Series B Purchasers at the closing(s) of an Additional Series B Financing by (y) the total number of all of the Notes and/or Preferred Shares purchased by all of the participating Purchasers at the Closing plus the number of shares of Series B Convertible Preferred Stock (as purchased by the case may be), outstandingSeries B Purchasers at the closing(s) of an Additional Series B Financing. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder Series B Purchasers within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; provided that all of the material terms and conditions of the closing are the same as those provided to the Noteholder Series B Purchasers in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur on that date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a3.23(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.23(a) shall not apply to issuances of securities in a Permitted Financing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “"Permitted Financing” " shall mean (i) securities issued pursuant to a bona fide firm underwritten public offering of the Company’s securities, (ii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement hereof or issued pursuant to this Agreement (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Series B Purchasers), (iiiii) the Warrant Shares, (iv) securities issued (other than for cash) in connection with an acquisition of the Company, (v) any warrants issued to the placement agent for the transactions contemplated by this Agreement, (vi) securities issued in connection with strategic license agreements and other partnering arrangements so long as such issuances are not for the purpose of raising capital and the Company has received the prior written consent of the Series B Purchasers, and (vii) the issuance of Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company’s stock option plans and employee stock purchase plans that either (x) exist on and which have been approved by the date hereof, or (y) Company’s Board of Directors so long as such issuances in the aggregate do not exceed ten percent (10%) of the Company’s issued and outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination), (iii) any warrants issued to the placement agent and its designees for the transactions contemplated by this Agreement, and (iv) securities issued in connection with a merger, consolidation, acquisition, strategic joint venture, or strategic partnership relationshipClosing Date.

Subsequent Financings. (a) For a period of twelve one (121) months year following the effective date of following the Registration Statement (as defined in the Registration Rights Agreement)Closing Date, the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “Rights Notice”) each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Purchaser of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering a Rights Notice to each Noteholder a Rights NoticePurchaser, the Company shall first deliver to each Noteholder Purchaser a written notice of its the Company’s intention to effect a Subsequent Financing (“Pre-Notice”) within three (3) Trading Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder Purchaser if it wants to review the details of such financing. Upon Each Purchaser must notify the request of a Noteholder, and only upon a request by such Noteholder Company within three (3) Trading Days of receipt of the Pre-Notice that such Purchaser elects to review the details of such financing (“Pre-Notice Acceptance”). Upon the Company’s receipt of a Pre-NoticeNotice Acceptance, and only upon the Company’s receipt of a Pre-Notice Acceptance, the Company shall promptly, but no later than two (2) Trading Days after such requestreceipt, deliver a Rights Notice to such NoteholderPurchaser. The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if knownknown at such time), the proposed closing date of the Subsequent Financing, which shall be no earlier than ten within twenty (1020) Trading Days calendar days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Purchaser an option (the “Rights Option”) during the ten (10) Trading Days following delivery Table of Contents of the Rights Notice (the “Option Period”) to inform the Company whether such Noteholder Purchaser will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. If any Noteholder Purchaser elects not to participate in any such Subsequent Financing, the other Noteholder Purchasers may therein participate on a pro pro-rata basisbasis so long as such participation in the aggregate does not exceed the aggregate Purchase Price of all Purchasers hereunder. For purposes of this Section, all references to “pro rata” means, for any Noteholder Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number of Notes and/or Preferred Stock, (as the case may be), held Shares purchased by such Noteholder Purchaser at the Closing by (y) the total number of all of the Notes and/or Preferred Stock (as Shares purchased by all of the case may be), outstandingparticipating Purchasers at the Closing. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price purchase price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder Purchasers within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; provided that all of the material terms and conditions of the closing are the same as those provided to the Noteholder Purchasers in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur on that date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a3.21(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.21(a) shall not apply to issuances of securities in a Permitted FinancingFinancing (as defined hereinafter). (b) Except for a Permitted Financing, the Company shall not enter into any Subsequent Financing for a period of ninety (90) days following the effective date of the Registration Statement (as defined in the Registration Rights Agreement). (c) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “Permitted Financing” shall mean (i) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (ii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement or issued pursuant to this Agreement (so long as the conversion or exercise price in such securities are not amended to lower such price price, except as a result of stock dividends, subdivisions or combinations, and/or adversely affect the Purchasers), (iiiii) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as such issuances are not for the purpose of raising capital, (iv) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company’s stock option plans and employee stock purchase plans that either (x) outstanding as they exist on the date hereofof this Agreement, or (yv) do not exceed ten percent (10%) the payment of dividends on the outstanding Preferred Shares in shares of Common Stock of the Company as of the date hereof or additional Preferred Shares, and (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination), (iiivi) any warrants issued to the placement agent and its designees for the transactions contemplated by this the Purchase Agreement, and (iv) securities issued in connection with a merger, consolidation, acquisition, strategic joint venture, or strategic partnership relationship.. Table of Contents

Subsequent Financings. (a) For a period of twelve one (121) months year following the effective date of the Registration Statement (as defined in the Registration Rights Agreement)Closing Date, the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “"Rights Notice”") each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Purchaser of the terms and conditions of any proposed private offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering a Rights Notice to each Noteholder a Rights NoticePurchaser, the Company shall first deliver to each Noteholder Purchaser a written notice of its the Company’s intention to effect a Subsequent Financing (“Pre-Notice”) within three (3) Trading Days of making or receiving an applicable offer, which Pre-Notice shall ask such Noteholder Purchaser if it wants to review the details of such financing. Upon Each Purchaser must notify the request of a Noteholder, and only upon a request by such Noteholder Company within three (3) Trading Days of receipt of the Pre-Notice that such Purchaser elects to review the details of such financing (“Pre-Notice Acceptance”). Upon the Company’s receipt of a Pre-NoticeNotice Acceptance, and only upon the Company’s receipt of a Pre-Notice Acceptance, the Company shall promptly, but no later than two (2) Trading Days after such requestreceipt, deliver a Rights Notice to such NoteholderPurchaser. The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known)Financing, the proposed closing date of the Subsequent Financing, which shall be no earlier than ten within twenty (1020) Trading Days calendar days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Purchaser an option (the “Rights Option”) during the ten five (105) Trading Days following delivery of the Rights Notice (the “Option Period”) to inform the Company whether such Noteholder Purchaser will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. For the avoidance of doubt, the Purchasers may elect to participate in up to 100% of the Subsequent Financing. If any Noteholder Purchaser elects not to participate in any such Subsequent Financing, the other Noteholder Purchasers may therein participate on a pro pro-rata basisbasis so long as such participation in the aggregate does not exceed the aggregate Purchase Price of all Purchasers hereunder. For purposes of this Section, all references to “pro rata” means, for any Noteholder Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number principal amount of the Notes and/or Preferred Stock, (as the case may be), held purchased by such Noteholder Purchaser at the Closing by (y) the total number principal amount of all of the Notes and/or Preferred Stock (as purchased by all of the case may be), outstandingparticipating Purchasers at the Closing. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder Purchasers within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; provided that all of the material terms and conditions of the closing are the same as those provided to the Noteholder Purchasers in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur within five (5) Trading Days of that date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a3.20(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.20(a) shall not apply to issuances of securities in a Permitted Financing. For purposes of this Section 3.20, the term “Purchaser” shall include any purchaser of Additional Notes and Warrants in the Additional Note and Warrant Financing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “Permitted Financing” shall mean (i) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement or issued pursuant to this Agreement (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Purchasers), (ii) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company’s stock option plans and employee stock purchase plans that either (x) exist on the date hereof, or (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination), (iii) any warrants issued to the placement agent and its designees for the transactions contemplated by this Agreement, and (iv) securities issued in connection with a merger, consolidation, acquisition, strategic joint venture, or strategic partnership relationship."

Subsequent Financings. (a) For Subject to the right of first refusal of the existing investors of the Company who participated in the financing that closed in May 2005, for a period of twelve one (121) months year following the effective date of Second Closing Date so long as the Registration Statement (as defined in the Registration Rights Agreement)Notes remain outstanding, the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “"Rights Notice”") each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Purchasers of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to each Noteholder a Rights Noticeincluding convertible debt securities (collectively, the Company shall first deliver to each Noteholder a written notice of its intention to effect a Subsequent "Financing (“Pre-Notice”) within three (3) Trading Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder if it wants to review the details of such financing. Upon the request of a Noteholder, and only upon a request by such Noteholder within three (3) Trading Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Trading Days after such request, deliver a Rights Notice to such NoteholderSecurities"). The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known)Financing, the proposed closing date of the Subsequent Financing, which shall be no earlier than ten within twenty (1020) Trading Days calendar days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Purchaser an option (the “Rights Option”) during the ten (10) Trading Days following delivery of the Rights Notice (the “Option Period”) to inform the Company whether such Noteholder Purchaser will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. If any Noteholder Purchaser elects not to participate in any such Subsequent Financing, the other Noteholder Purchasers may therein participate on a pro pro-rata basisbasis so long as such participation in the aggregate does not exceed the total Purchase Price hereunder. For purposes of this Section, all references to “pro rata” means, for any Noteholder Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number principal amount of the Notes and/or Preferred Stock, (as the case may be), held purchased by such Noteholder Purchaser at the each Closing by (y) the total number principal amount of all of the Notes and/or Preferred Stock (as purchased by all of the case may be), outstandingparticipating Purchasers at each Closing. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder Purchasers within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; provided that all of the material terms and conditions of the closing are substantially the same as those provided to the Noteholder Purchasers in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur on that date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a) shall not apply to issuances of securities in a Permitted Financing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “"Permitted Financing” " shall mean (i) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (ii) securities issued pursuant to a bona fide firm underwritten public offering of the Company’s securities, (iii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement hereof or issued pursuant to this Agreement and the Notes, (iv) the Warrant Shares, (v) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as the conversion or exercise price in such securities issuances are not amended to lower such price and/or adversely affect for the Purchasers)purpose of raising capital, (iivi) Common Stock issued or the issuance or grants of options to purchase Common Stock granted or issued pursuant to the Company’s stock option plans and employee stock purchase plans that either (x) as they now exist on and stock incentive plans as they now exist or as may be amended so long as the date hereof, or (y) do aggregate number of shares of Common Stock issued pursuant to such stock incentive plans does not exceed ten percent 8,000,000, and (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination), (iiivii) any warrants issued to the placement agent and its designees for the transactions contemplated by this Agreement, and (ivviii) securities issued the payment of any principal and accrued interest in connection with a merger, consolidation, acquisition, strategic joint venture, or strategic partnership relationshipshares of Common Stock pursuant to the Notes.

Subsequent Financings. (a) For a period of twelve one (121) months year following the effective date of the Registration Statement (as defined in the Registration Rights Agreement)Closing Date, the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “"Rights Notice”") each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Purchasers of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to each Noteholder a Rights Noticeincluding convertible debt securities (collectively, the Company shall first deliver to each Noteholder a written notice of its intention to effect a Subsequent "Financing (“Pre-Notice”) within three (3) Trading Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder if it wants to review the details of such financing. Upon the request of a Noteholder, and only upon a request by such Noteholder within three (3) Trading Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Trading Days after such request, deliver a Rights Notice to such NoteholderSecurities"). The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known)Financing, the proposed closing date of the Subsequent Financing, which shall be no earlier than ten within twenty (1020) Trading Days calendar days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Purchaser an option (the “Rights Option”) during the ten (10) Trading Days following delivery of the Rights Notice (the “Option Period”) to inform the Company whether such Noteholder Purchaser will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. If any Noteholder Purchaser elects not to participate in any such Subsequent Financing, the other Noteholder Purchasers may therein participate on a pro pro-rata basisbasis so long as such participation in the aggregate does not exceed the total Purchase Price hereunder. For purposes of this Section, all references to “pro rata” means, for any Noteholder Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number principal amount of the Notes and/or Preferred Stock, (as the case may be), held purchased by such Noteholder Purchaser at the Closing by (y) the total number principal amount of all of the Notes and/or Preferred Stock (as purchased by all of the case may be), outstandingparticipating Purchasers at the Closing. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder Purchasers within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; provided that all of the material terms and conditions of the closing are the same as those provided to the Noteholder Purchasers in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur on that date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a3.19(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.19(a) shall not apply to issuances of securities in a Permitted FinancingFinancing (as defined below). (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “"Permitted Financing” " shall mean (i) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (ii) securities issued pursuant to a bona fide firm underwritten public offering of the Company’s securities, (iii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement hereof or issued pursuant to this Agreement and the Notes, (iv) the Warrant Shares, (v) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as the conversion or exercise price in such securities issuances are not amended to lower such price and/or adversely affect for the Purchasers)purpose of raising capital, (iivi) Common Stock issued or the issuance or grants of options to purchase Common Stock granted or issued pursuant to the Company’s stock option plans as they now exist and employee stock purchase plans that either (x) exist on the date hereof, or (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination)they now exist, (iiivii) any warrants issued to the placement agent and its designees for the transactions contemplated by this Agreement, and (ivviii) securities issued the payment of any accrued interest in connection with a merger, consolidation, acquisition, strategic joint venture, or strategic partnership relationshipshares of Common Stock pursuant to the Notes.

Subsequent Financings. (a) For a period of twelve one (121) months year following the following the effective date of the Registration Statement (as defined in registration statement providing for the Registration Rights Agreement)resale of the Conversion Shares and the Warrant Shares, the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “"Rights Notice”") each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Purchasers of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “"Subsequent Financing”"), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to each Noteholder a Rights Notice, the Company shall first deliver to each Noteholder a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”) within three (3) Trading Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder if it wants to review the details of such financing. Upon the request of a Noteholder, and only upon a request by such Noteholder within three (3) Trading Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Trading Days after such request, deliver a Rights Notice to such Noteholder. The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known)Financing, the proposed closing date of the Subsequent Financing, which shall be no earlier than ten within twenty (1020) Trading Days calendar days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Purchaser an option (the “"Rights Option”") during the ten (10) Trading Days following delivery of the Rights Notice (the “"Option Period”") to inform the Company whether such Noteholder Purchaser will purchase up that number of shares equal to its such Purchaser's pro rata portion of all or a portion of the securities being offered in such Subsequent Financing Company's Common Stock then outstanding on an as converted basis on the same, absolute terms and conditions as contemplated by such Subsequent Financing. If any Noteholder Purchaser elects not to participate in any such Subsequent Financing, the other Noteholder Purchasers may therein participate on a pro pro-rata basisbasis so long as such participation in the aggregate does not exceed the total Purchase Price hereunder. For purposes of this Section, all references to “"pro rata” " means, for any Noteholder Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number of Notes and/or Preferred Stock, (as Conversion Shares plus the case may be), number of Warrant Shares held by such Noteholder at Purchaser on the Closing date of the Rights Notice by (y) the total number of all of the Notes and/or Preferred Company's Common Stock (as the case may be)outstanding, outstandingfully diluted on that same date. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder Purchasers within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; provided that all of the material terms and conditions of the closing are the same as those provided to the Noteholder Purchasers in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur on that date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a3.20(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.20(a) shall not apply to issuances of securities in a Permitted Financing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “Permitted Financing” shall mean (i) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement or issued pursuant to this Agreement (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Purchasers), (ii) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company’s stock option plans and employee stock purchase plans that either (x) exist on the date hereof, or (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination), (iii) any warrants issued to the placement agent and its designees for the transactions contemplated by this Agreement, and (iv) securities issued in connection with a merger, consolidation, acquisition, strategic joint venture, or strategic partnership relationship.

Subsequent Financings. (a) For a period of Subject to compliance with Section 3.15(b) below, for twelve (12) months following the effective date of the Registration Statement (as defined in the Registration Rights Agreement)Closing, the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “Rights Notice”) each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Purchasers of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior . (b) Prior to delivering to each Noteholder Purchaser a Rights Notice, the Company shall first deliver to each Noteholder Eligible Purchaser a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”) within three (3) Trading Business Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder Eligible Purchaser if it wants to review the details of such financing. Upon the request of a Noteholderan Eligible Purchaser, and only upon a request by such Noteholder Eligible Purchaser within three (3) Trading Business Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Trading Business Days after such request, deliver a Rights Notice to such NoteholderEligible Purchaser. The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known), the proposed closing date of the Subsequent Financing, which shall be no earlier than ten (10) Trading Business Days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Purchaser an option (the “Rights Option”) during the ten five (105) Trading Business Days following delivery of the Rights Notice (the “Option Period”) to inform the Company whether such Noteholder Eligible Purchaser will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. If any Noteholder elects not to participate in any such Subsequent Financing, provided that, the other Noteholder may therein participate on a pro rata basisamount of such purchase shall not exceed such Purchaser’s Purchase Price. For purposes of this Section, all references to “pro rata” means, for any Noteholder Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number of Notes and/or Preferred Stock, (as the case may be), held Common Shares purchased by such Noteholder Purchaser at the Closing by (y) the total number of all of the Notes and/or Preferred Stock (as Common Shares purchased by all of the case may be), outstandingparticipating Purchasers at the Closing. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder any or all of Eligible Purchasers within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third partyset forth in the Rights Notice (or within sixty (60) days thereafter) without the participation of any or all of such Purchasers; provided that that, all of the material terms and conditions of the closing are the same as those provided to the Noteholder Purchasers in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur that dateon the scheduled closing date set forth in the Rights Notice (or within sixty (60) days thereafter), any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a3.12(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.12(a) shall not apply to issuances of securities in a Permitted Financing. (bc) For so long as any Notes are outstanding, the Purchasers shall have a right to participate in any new Green Coffee purchase financing in a percentage equal to the ratio of the face value of the then outstanding Notes to the amount raised in such Green Coffee purchase financing; provided however, that the Company shall follow the procedures set forth in Section 3.15(b) above before completing any such Green Coffee purchase financing, with appropriate modifications. (d) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “Permitted Financing” shall mean (i) securities issued pursuant to a bona fide acquisition of another business entity or business segment of any such entity by the Company pursuant to a merger, purchase of substantially all the assets or any type of reorganization (each an “Acquisition”) provided that (A) the Company will own more than fifty percent (50%) of the voting power of such business entity or business segment of such entity and (B) such Acquisition is approved by the Company’s Board of Directors; (ii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement or issued pursuant to this Agreement (so long as the terms governing the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Purchasers), ; (iiiii) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as such issuances are not for the primary purpose of raising capital; (iv) Common Stock issued or the issuance or grants of options to purchase Common Stock Stock, in each case, at no less than the then-applicable fair market value, pursuant to equity incentive plans that are adopted by the Company’s stock option plans and employee stock purchase plans that either Board of Directors; (xv) exist on the date hereof, or (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination), (iii) any warrants securities issued to the any placement agent and its respective designees for the transactions contemplated by this Agreement; (vi) securities issued at no less than the then-applicable fair market value to advisors or consultants (including, without limitation, financial advisors and investor relations firms) in connection with any engagement letter or consulting agreement, provided that any such issuance is approved by the Company’s Board of Directors; (ivvii) securities issued to financial institutions or lessors in connection with reasonable commercial credit arrangements, equipment financings or similar transactions, provided that any such issue is approved by the Company’s Board of Directors; (viii) securities issued to vendors or customers or to other persons in similar commercial situations as the Company, provided that any such issue is approved by the Company’s Board of Directors; (ix) securities issued in connection with any recapitalization of the Company; or (x) securities issued pursuant to an underwritten public offering of its common stock. Notwithstanding anything contained herein to the contrary, although the Company shall be entitled to complete a mergerPermitted Financing, consolidation, acquisition, strategic joint venture, or strategic partnership relationshipall Permitted Financings shall rank junior to the Notes.

Subsequent Financings. (a) For a period of twelve two (122) months years following the effective date of the initial Registration Statement (as defined in the Registration Rights Agreement), the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “Rights Notice”) each holder of Notes and/or Preferred Stock Shares (as the case may beeach, each a “NoteholderPreferred Stockholder” and collectively the “NoteholdersPreferred Stockholders”) of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to each Noteholder Preferred Stockholder a Rights Notice, the Company shall first deliver to each Noteholder Preferred Stockholder a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”) within three (3) Trading Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder Preferred Stockholder if it wants to review the details of such financing. Upon the request of a NoteholderPreferred Stockholder, and only upon a request by such Noteholder Preferred Stockholder within three (3) Trading Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Trading Days after such request, deliver a Rights Notice to such NoteholderPreferred Stockholder. The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known), the proposed closing date of the Subsequent Financing, which shall be no earlier than ten (10) Trading Days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Preferred Stockholder an option (the “Rights Option”) during the ten (10) Trading Days following delivery of the Rights Notice (the “Option Period”) to inform the Company whether such Noteholder Preferred Stockholder will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing, provided the amount of such purchase shall not exceed the Purchase Price hereunder of the Preferred Shares held by such Preferred Stockholder except as allowed by the following sentence. If any Noteholder Preferred Stockholder elects not to participate in any such Subsequent Financing, the other Noteholder Preferred Stockholders may therein participate on a pro pro-rata basisbasis so long as such participation in the aggregate does not exceed the total Purchase Price hereunder. For purposes of this Section, all references to “pro rata” means, for any Noteholder Preferred Stockholder electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number of Notes and/or Preferred Stock, (as the case may be), Shares held by such Noteholder Preferred Stockholder at the Closing by (y) the total number of all of the Notes and/or Preferred Stock (as the case may be), outstandingShares issued hereunder. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder Preferred Stockholder within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; provided provided, that all of the material terms and conditions of the closing are the same as those provided to the Noteholder Preferred Stockholder in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur by that date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a3.21(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.21(a) shall not apply to issuances of securities in a Permitted Financing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “Permitted Financing” shall mean (i) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (ii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement or issued pursuant to this Agreement or any of the other Transaction Documents (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Purchasers), (iiiii) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as such issuances are not for the purpose of raising capital, (iv) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the CompanyIssuer’s stock option equity incentive plans and employee stock purchase plans that either (x) outstanding as they exist on the date hereofof this Agreement, (v) the issuance or (y) grants of options to purchase Common Stock to employees, officers or directors of the Company pursuant to any equity incentive plan duly adopted by the Board or a committee thereof established for such purpose so long as such issuances in the aggregate do not exceed ten percent (10%) % of the issued and outstanding shares of Common Stock of the Company as of the date hereof (such percentage subject of this Agreement and the specified price at which the options may be exercised is equal to adjustment consistent with or greater than the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding Per Share Market Value as of the time date of determination)such grant, and (iiivi) any warrants issued to the placement agent agent, financial advisors and its their respective designees for the transactions contemplated by this Agreementthe Transaction Documents; provided, however that with respect to any such Permitted Financing pursuant to (i) and (iviii) securities issued in connection with a mergersuch Permitted Financings shall be subject to the prior written approval of Vision Opportunity Master Fund, consolidation, acquisition, strategic joint venture, or strategic partnership relationshipLtd. (“Vision”).

Subsequent Financings. (a) For a period of twelve one (121) months year following the following the effective date of the Registration Statement (as defined in registration statement providing for the Registration Rights Agreement)resale of the Conversion Shares and the Warrant Shares, the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “"Rights Notice”") each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Purchasers of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to each Noteholder a Rights Notice, the Company shall first deliver to each Noteholder a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”) within three (3) Trading Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder if it wants to review the details of such financing. Upon the request of a Noteholder, and only upon a request by such Noteholder within three (3) Trading Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Trading Days after such request, deliver a Rights Notice to such Noteholder. The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known)Financing, the proposed closing date of the Subsequent Financing, which shall be no earlier than ten within twenty (1020) Trading Days calendar days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Purchaser an option (the “Rights Option”) during the ten (10) Trading Days following delivery of the Rights Notice (the “Option Period”) to inform the Company whether such Noteholder Purchaser will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. If any Noteholder Purchaser elects not to participate in any such Subsequent Financing, the other Noteholder Purchasers may therein participate on a pro pro-rata basisbasis so long as such participation in the aggregate does not exceed the total Purchase Price hereunder. For purposes of this Section, all references to “pro rata” means, for any Noteholder Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number of Notes and/or Preferred Stock, (as the case may be), held Shares purchased by such Noteholder Purchaser at the Closing by (y) the total number of all of the Notes and/or Preferred Stock (as Shares purchased by all of the case may be), outstandingparticipating Purchasers at the Closing. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder Purchasers within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; provided that all of the material terms and conditions of the closing are the same as those provided to the Noteholder Purchasers in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur on that date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a3.21(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.21(a) shall not apply to issuances of securities in a Permitted Financing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “"Permitted Financing” " shall mean (i) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (ii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement or issued ­ pursuant to this Agreement (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Purchasers), (iiiii) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as such issuances are not for the purpose of raising capital, (iv) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company’s stock option plans and employee stock purchase plans that either (x) outstanding as they exist on the date hereof, or (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination)this Agreement, (iiiv) the payment of dividends on the Preferred Shares in shares of Common Stock, (vi) any warrants issued to the placement agent and its designees for the transactions contemplated by this the Purchase Agreement, and (ivviii) securities issued in connection with a merger, consolidation, acquisition, strategic joint venture, pursuant to the Additional Preferred Stock and Warrant Financing and securities issuable upon the conversion or strategic partnership relationshipexercise of such securities issued pursuant to the Additional Preferred Stock and Warrant Financing.

Subsequent Financings. (a) For a period of twelve one (121) months year following the following the effective date of the Registration Statement (as defined in registration statement providing for the Registration Rights Agreement)resale of the Conversion Shares and the Warrant Shares, the Company covenants and agrees to promptly notify (in no event later than five eight (5) 8) days after making or receiving an applicable offer) in writing (a “"Rights Notice”") each holder Purchaser who has purchased at least $250,000 of Notes and/or Preferred Stock Shares pursuant to this Agreement (as the case may be, each a an “Noteholder” and collectively the “NoteholdersEligible Purchaser”) of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering a Rights Notice to each Noteholder a Rights NoticeEligible Purchaser, the Company shall first deliver to each Noteholder Eligible Purchaser a written notice of its the Company’s ­ intention to effect a Subsequent Financing (“Pre-Notice”) within three (3) Trading Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder Eligible Purchaser if it wants to review the details of such financing. Upon Each Eligible Purchaser must notify the request of a Noteholder, and only upon a request by such Noteholder Company within three (3) Trading Days of receipt of the Pre-Notice that such Eligible Purchaser elects to review the details of such financing (“Pre-Notice Acceptance”). Notwithstanding anything contained herein to the contrary, the parties agree that all Pre-Notices and Pre-Notice Acceptances shall be sent via facsimile or email. Upon the Company’s receipt of a Pre-NoticeNotice Acceptance, and only upon the Company’s receipt of a Pre-Notice Acceptance, the Company shall promptly, but no later than two (2) Trading Days after such requestreceipt, deliver a Rights Notice to such NoteholderEligible Purchaser. For further clarification, the parties agree that if the Company does not receive the Pre-Notice Acceptance by the fourth (4th) Trading Day following the date the Company sent the Pre-Notice to the Eligible Purchasers, the Company shall not submit a Rights Notice to such Eligible Purchaser. The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known)Financing, the proposed closing date of the Subsequent Financing, which shall be no earlier than ten within twenty (1020) Trading Days calendar days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Eligible Purchaser an option (the “Rights Option”) during the ten seven (107) Trading Days following delivery of the Rights Notice (the “Option Period”) to inform the Company whether such Noteholder Eligible Purchaser will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. If any Noteholder Eligible Purchaser elects not to participate in any such Subsequent Financing, the other Noteholder Eligible Purchasers may therein participate on a pro pro-rata basisbasis so long as such participation in the aggregate does not exceed the aggregate Purchase Price of all Eligible Purchasers hereunder. For purposes of this Section, all references to “pro rata” means, for any Noteholder Eligible Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number of Notes and/or Preferred Stock, (as the case may be), held Shares purchased by such Noteholder Eligible Purchaser at the Closing by (y) the total number of all of the Notes and/or Preferred Stock (as Shares purchased by all of the case may be), outstandingparticipating Eligible Purchasers at the Closing. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder Eligible Purchasers within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; provided that all of the material terms and conditions of the closing are the same as those provided to the Noteholder Eligible Purchasers in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur on that date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a3.21(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.21(a) shall not apply to issuances of securities in a Permitted Financing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “Permitted Financing” shall mean (i) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement or issued pursuant to this Agreement (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Purchasers), (ii) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company’s stock option plans and employee stock purchase plans that either (x) exist on the date hereof, or (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination), (iii) any warrants issued to the placement agent and its designees for the transactions contemplated by this Agreement, and (iv) securities issued in connection with a merger, consolidation, acquisition, strategic joint venture, or strategic partnership relationship.­

Subsequent Financings. (ai) For a period of twelve one (121) months year following the effective date of the Registration Statement (as defined in registration statement providing for the Registration Rights Agreement)resale of the Conversion Shares and the Warrant Shares, the Company covenants and agrees to promptly notify (in no event later than five twenty (520) days after making or receiving accepting an applicable offer) in writing (a “"Rights Notice”") each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Purchasers of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “"Subsequent Financing”"), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to each Noteholder a Rights Notice, the Company shall first deliver to each Noteholder a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”) within three (3) Trading Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder if it wants to review the details of such financing. Upon the request of a Noteholder, and only upon a request by such Noteholder within three (3) Trading Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Trading Days after such request, deliver a Rights Notice to such Noteholder. The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known)Financing, the proposed closing date of the Subsequent Financing, which shall be no earlier than ten within ninety (1090) Trading Days calendar days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Purchaser an option (the “"Rights Option”") during the ten (10) Trading Days following delivery of the Rights Notice (the “"Option Period”") to inform the Company whether such Noteholder Purchaser will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. If any Noteholder elects not to participate in any such Subsequent Financing, the other Noteholder may therein participate on a pro rata basis. For purposes of this Section, all references to “"pro rata” " means, for any Noteholder Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number of Notes and/or Preferred Stock, (as Conversion Shares and Warrant Shares underlying the case may be), held Units purchased by such Noteholder Purchaser at the Closing by (y) the total number of all of the Notes and/or Preferred Stock (as shares of common stock issued and outstanding on a fully diluted basis, on the case may be), outstandingClosing Date. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder Purchasers within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; provided that all of the material terms and conditions of the closing are the same as those provided to the Noteholder Purchasers in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur that within thirty (30) days of the scheduled closing date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a3.1(l)(i), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.1(l)(i) shall not apply to issuances of securities in a Permitted Financing. (bii) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “"Permitted Financing” " shall mean (i) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (ii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement or issued pursuant to this Agreement (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Purchasers), (iiiii) securities issued as compensation to consultants, advisors, suppliers or third-party service providers in connection with the provision of goods or services (including without limitation placement agent and investor relations services), and securities issued in connection with bona fide strategic license agreements or other partnering or contracting arrangements so long as such issuances are not for the purpose of raising capital, (iv) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company’s 's stock option plans and employee stock purchase plans that either plans, (xv) exist the payment of dividends on the date hereof, or (y) do not exceed ten percent (10%) Preferred Shares in shares of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination)Stock, (iiivi) any warrants issued to the placement agent and its finders (and their respective designees) and Purchaser designees for the transactions contemplated by this AgreementAgreement and, and (ivvii) securities issued in connection with a mergerto banks, consolidation, acquisition, strategic joint ventureequipment lessors or other financial institutions, or strategic partnership relationshipto real property lessors, pursuant to a debt financing, equipment leasing or real property leasing transaction.

Subsequent Financings. (a) For a period of twelve one (121) months year following the effective date of Initial Closing Date (which one-year period shall extend for each day that the Registration Statement (is not effective as defined in required under the Registration Rights Agreement), the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “"Rights Notice”") each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Purchasers of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “"Subsequent Financing”"), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock, including convertible debt securities (collectively, the "Financing Securities"); provided, however, prior to delivering to each Noteholder Purchaser a Rights Notice, the Company shall first deliver to each Noteholder Purchaser a written notice of its intention to effect a Subsequent Financing (“"Pre-Notice”") within three (3) Trading Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder Purchaser if it wants to review the details of such financing. Upon the request of a NoteholderPurchaser, and only upon a request by such Noteholder Purchaser within three (3) Trading Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Trading Days after such request, deliver a Rights Notice to such NoteholderPurchaser. The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known)Financing, the proposed closing date of the Subsequent Financing, which shall be no earlier than ten within twenty (1020) Trading Days calendar days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Purchaser an option (the “"Rights Option”") during the ten (10) Trading Days following delivery of the Rights Notice (the “"Option Period”") to inform the Company whether such Noteholder Purchaser will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. If any Noteholder Purchaser elects not to participate in any such Subsequent Financing, the other Noteholder Purchasers may therein participate on a pro pro-rata basisbasis so long as such participation in the aggregate does not exceed the total Purchase Price hereunder. For purposes of this Section, all references to “"pro rata” " means, for any Noteholder Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number principal amount of the Notes and/or Preferred Stock, (as the case may be), held purchased by such Noteholder Purchaser at the Closing Closings by (y) the sum of (1) the total number principal amount of all of the Notes and/or Preferred Stock purchased by all of the participating Purchasers at the Closings and (as 2) the case may be), outstandingtotal principal amount of all of the promissory notes purchased by Bounce pursuant to the Share Exchange Transaction. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder Purchasers within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; provided that all of the material terms and conditions of the closing are the same as those provided to the Noteholder Purchasers in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur on that date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a3.20(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.20(a) shall not apply to issuances of securities in a Permitted Financing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “"Permitted Financing” " shall mean (i) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (ii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement hereof or issued pursuant to the Share Exchange Transaction, this Agreement and the Notes, including the Conversion Shares, (iii) the Warrant Shares, (iv) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as the conversion or exercise price in such securities issuances are not amended to lower such price and/or adversely affect for the Purchasers)purpose of raising capital, (iiv) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company’s 's stock option plans and employee stock purchase plans that either (x) as they now exist on the date hereof, or (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination), (iiivi) any warrants issued to the placement agent and its designees for the transactions contemplated by this Agreement, and (ivvii) securities Common Stock issued in connection with a merger, consolidation, acquisition, strategic joint venture, consulting or strategic partnership relationshipadvisory services not in excess of 5,000,000 shares; and (viii) the payment of any principal in shares of Common Stock pursuant to the Notes or any promissory notes issued by the Company pursuant to the Share Exchange Transaction.

Subsequent Financings. (a) For In addition to, and notwithstanding Section 3.19, for a period of twelve one (121) months year following the effective date of Closing Date (which one-year period shall extend for each day that the Registration Statement (as defined in the Registration Rights Agreement) is not effective as required under the Registration Rights Agreement), the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “"Rights Notice”") each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Purchasers of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to each Noteholder a Rights Noticeincluding convertible debt securities (collectively, the Company shall first deliver to each Noteholder a written notice of its intention to effect a Subsequent "Financing (“Pre-Notice”) within three (3) Trading Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder if it wants to review the details of such financing. Upon the request of a Noteholder, and only upon a request by such Noteholder within three (3) Trading Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Trading Days after such request, deliver a Rights Notice to such NoteholderSecurities"). The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known)Financing, the proposed closing date of the Subsequent Financing, which shall be no earlier than ten within twenty (1020) Trading Days calendar days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Purchaser an option (the “Rights Option”) during the ten (10) Trading Days following delivery of the Rights Notice (the “Option Period”) to inform the Company whether such Noteholder Purchaser will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. If any Noteholder Purchaser elects not to participate in any such Subsequent Financing, the other Noteholder Purchasers may therein participate on a pro pro-rata basisbasis up to the total Subsequent Financing amount. For purposes of this Section, all references to “pro rata” means, for any Noteholder Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number principal amount of the Notes and/or Preferred Stock, (as the case may be), held purchased by such Noteholder Purchaser at the Closing by (y) the total number principal amount of all of the Notes and/or Preferred Stock (as purchased by all of the case may be), outstandingparticipating Purchasers at the Closing. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder Purchasers within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; provided that all of the material terms and conditions of the closing are the same as those provided to the Noteholder Purchasers in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur on that date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a3.20(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.20(a) shall not apply to issuances of securities in a Permitted Financing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “Permitted Financing” shall mean (i) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement or issued pursuant to this Agreement (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Purchasers), (ii) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company’s stock option plans and employee stock purchase plans that either (x) exist on the date hereof, or (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination), (iii) any warrants issued to the placement agent and its designees for the transactions contemplated by this Agreement, and (iv) securities issued in connection with a merger, consolidation, acquisition, strategic joint venture, or strategic partnership relationship."

Subsequent Financings. (a) For a period of twelve two (122) months years following the effective date of the initial Registration Statement (as defined in the Registration Rights Agreement), the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “Rights Notice”) each holder of Notes and/or Preferred Stock Shares (as the case may beeach, each a “NoteholderPreferred Stockholder” and collectively the “NoteholdersPreferred Stockholders”) of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to each Noteholder Preferred Stockholder a Rights Notice, the Company shall first deliver to each Noteholder Preferred Stockholder a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”) within three (3) Trading Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder Preferred Stockholder if it wants to review the details of such financing. Upon the request of a NoteholderPreferred Stockholder, and only upon a request by such Noteholder Preferred Stockholder within three (3) Trading Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Trading Days after such request, deliver a Rights Notice to such NoteholderPreferred Stockholder. The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known), the proposed closing date of the Subsequent Financing, which shall be no earlier than ten (10) Trading Days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Preferred Stockholder an option (the “Rights Option”) during the ten (10) Trading Days following delivery of the Rights Notice (the “Option Period”) to inform the Company whether such Noteholder Preferred Stockholder will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing, provided the amount of such purchase shall not exceed the Purchase Price hereunder of the Preferred Shares held by such Preferred Stockholder except as allowed by the following sentence. If any Noteholder Preferred Stockholder elects not to participate in any such Subsequent Financing, the other Noteholder Preferred Stockholders may therein participate on a pro pro-rata basisbasis so long as such participation in the aggregate does not exceed the total Purchase Price hereunder. For purposes of this Section, all references to “pro rata” means, for any Noteholder Preferred Stockholder electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number of Notes and/or Preferred Stock, (as the case may be), Shares held by such Noteholder Preferred Stockholder at the Closing by (y) the total number of all of the Notes and/or Preferred Stock (as the case may be), outstandingShares issued hereunder. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder Preferred Stockholder within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; provided provided, that all of the material terms and conditions of the closing are the same as those provided to the Noteholder Preferred Stockholder in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur that date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a3.21(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.21(a) shall not apply to issuances of securities in a Permitted Financing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “Permitted Financing” shall mean (i) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (ii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement or issued pursuant to this Agreement or any of the other Transaction Documents (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Purchasers), (iiiii) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as such issuances are not for the purpose of raising capital, (iv) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company’s stock option plans and employee stock purchase plans that either (x) outstanding as they exist on the date hereofof this Agreement, or and (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination), (iiiv) any warrants issued to the placement agent agent, financial advisors and its their respective designees for the transactions contemplated by this Agreement, and (iv) securities issued in connection with a merger, consolidation, acquisition, strategic joint venture, or strategic partnership relationshipthe Transaction Documents.

Subsequent Financings. (a) For a period of twelve two (122) months years following the effective date of the Registration Statement (as defined in registration statement providing for the Registration Rights Agreement)resale of the Conversion Shares and the Warrant Shares, the Company covenants and agrees to promptly notify (in no event later than five (5) business days after making or receiving an applicable offer) in writing (a “"Rights Notice”") each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Series B Purchasers of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) to any third party (a “Subsequent Financing”)by the Company, of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to each Noteholder Stock (a Rights Notice, the Company shall first deliver to each Noteholder a written notice of its intention to effect a "Subsequent Financing (“Pre-Notice”) within three (3) Trading Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder if it wants to review the details of such financing. Upon the request of a Noteholder, and only upon a request by such Noteholder within three (3) Trading Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Trading Days after such request, deliver a Rights Notice to such NoteholderFinancing"). The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known)Financing, the proposed closing date of the Subsequent Financing, which shall be no earlier than ten within twenty (1020) Trading Days calendar days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Series B Purchaser an option (the “"Rights Option”") during the ten (10) Trading Days following delivery of the Rights Notice (the “"Option Period”") to inform the Company whether such Noteholder Series B Purchaser will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. If any Noteholder Series B Purchaser elects not to participate in any such Subsequent Financing, the other Noteholder Series B Purchasers may therein participate on a pro pro-rata basisbasis so long as such participation in the aggregate does not exceed the total Purchase Price hereunder. For purposes of this Section, all references to “"pro rata” " means, for any Noteholder Series B Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number of Notes and/or Preferred Stock, (as the case may be), held Shares purchased by such Noteholder Purchaser at the Closing plus the number of shares of Series B Convertible Preferred Stock purchased by the Series B Purchasers at the closing(s) of an Additional Series B Financing by (y) the total number of all of the Notes and/or Preferred Shares purchased by all of the participating Purchasers at the Closing plus the number of shares of Series B Convertible Preferred Stock (as purchased by the case may be), outstandingSeries B Purchasers at the closing(s) of an Additional Series B Financing. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder Series B Purchasers within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; provided that all of the material terms and conditions of the closing are the same as those provided to the Noteholder Series B Purchasers in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur on that date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a3.23(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.23(a) shall not apply to issuances of securities in a Permitted Financing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “"Permitted Financing” " shall mean (i) securities issued pursuant to a bona fide firm underwritten public offering of the Company's securities, (ii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement hereof or issued pursuant to this Agreement (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Series B Purchasers), (iiiii) the Warrant Shares, (iv) securities issued (other than for cash) in connection with an acquisition of the Company, (v) any warrants issued to the placement agent for the transactions contemplated by this Agreement, (vi) securities issued in connection with strategic license agreements and other partnering arrangements so long as such issuances are not for the purpose of raising capital and the Company has received the prior written consent of the Series B Purchasers, and (vii) the issuance of Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company’s 's stock option plans and employee stock purchase plans that either (x) exist on and which have been approved by the date hereof, or (y) Company's Board of Directors so long as such issuances in the aggregate do not exceed ten percent (10%) of the Company's issued and outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination), (iii) any warrants issued to the placement agent and its designees for the transactions contemplated by this Agreement, and (iv) securities issued in connection with a merger, consolidation, acquisition, strategic joint venture, or strategic partnership relationshipClosing Date.

Subsequent Financings. (a) For So long as a period Purchaser owns at least ten percent (10%) of twelve (12) months following the effective total number of Preferred Shares such Purchaser purchased on the date of the Registration Statement this Agreement (as defined in the Registration Rights Agreementan “Eligible Purchaser”), the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “Rights Notice”) each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Eligible Purchasers of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to each Noteholder Eligible Purchaser a Rights Notice, the Company shall first deliver to each Noteholder Eligible Purchaser a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”) within three (3) Trading Business Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder Eligible Purchaser if it wants to review the details of such financing. Upon the request of a Noteholderan Eligible Purchaser, and only upon a request by such Noteholder Eligible Purchaser within three (3) Trading Business Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Trading Business Days after such request, deliver a Rights Notice to such NoteholderEligible Purchaser. The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known), the proposed closing date of the Subsequent Financing, which shall be no earlier than ten (10) Trading Business Days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Eligible Purchaser an option (the “Rights Option”) during the ten (10) Trading Business Days following delivery of the Rights Notice (the “Option Period”) to inform the Company whether such Noteholder Eligible Purchaser will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing, provided that, the amount of such purchase shall not exceed such Eligible Purchaser’s Purchase Price hereunder except as allowed by the following sentence. If any Noteholder Eligible Purchaser elects not to participate in any such Subsequent Financing, the other Noteholder Eligible Purchasers may therein participate on a pro pro-rata basisbasis so long as such participation in the aggregate does not exceed the total Purchase Price hereunder. For purposes of this Section, all references to “pro rata” means, for any Noteholder Eligible Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number of Notes and/or Preferred Stock, (as the case may be), held Shares purchased by such Noteholder Eligible Purchaser at the Closing by (y) the total number of all of the Notes and/or Preferred Stock (as Shares purchased by all of the case may be), outstandingparticipating Eligible Purchasers at the Closing. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder any or all of Eligible Purchasers within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third partyset forth in the Rights Notice (or within sixty (60) days thereafter) without the participation of any or all of such Eligible Purchasers; provided that that, all of the material terms and conditions of the closing are the same as those provided to the Noteholder Eligible Purchasers in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur that dateon the scheduled closing date set forth in the Rights Notice (or within sixty (60) days thereafter), any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a3.23(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.23(a) shall not apply to issuances of securities in a Permitted Financing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “Permitted Financing” shall mean (i) securities issued pursuant to a bona fide acquisition of another business entity or business segment of any such entity by the Company pursuant to a merger, purchase of substantially all the assets or any type of reorganization (each an “Acquisition”) provided that (A) the Company will own more than fifty percent (50%) of the voting power of such business entity or business segment of such entity and (B) such Acquisition is approved by the Company’s Board of Directors; (ii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement or issued pursuant to this Agreement (so long as the terms governing the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Purchasers), ; (iiiii) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as such issuances are not for the primary purpose of raising capital; (iv) Common Stock issued or the issuance or grants of options to purchase Common Stock Stock, in each case, at no less than the then-applicable fair market value, pursuant to equity incentive plans that are adopted by the Company’s stock option plans and employee stock purchase plans that either Board of Directors; (xv) exist on the date hereof, or (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination), (iii) any warrants securities issued to the any placement agent and its respective designees for the transactions contemplated by this Agreement; (vi) securities issued at no less than the then-applicable fair market value to advisors or consultants (including, without limitation, financial advisors and investor relations firms) in connection with any engagement letter or consulting agreement, provided that any such issuance is approved by the Company’s Board of Directors; (vii) securities issued to financial institutions or lessors in connection with reasonable commercial credit arrangements, equipment financings or similar transactions, provided that any such issue is approved by the Company’s Board of Directors; (viii) securities issued to vendors or customers or to other persons in similar commercial situations as the Company, provided that any such issue is approved by the Company’s Board of Directors; and (ivix) securities issued in connection with a merger, consolidation, acquisition, strategic joint venture, or strategic partnership relationshipany recapitalization of the Company.

Subsequent Financings. (a) For a period of twelve (12) months following the effective date of the Registration Statement (as defined in the Registration Rights Agreement)Closing, the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “Rights Notice”) each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Purchasers of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to each Noteholder Purchaser a Rights Notice, the Company shall first deliver to each Noteholder Eligible Purchaser a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”) within three (3) Trading Business Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder Eligible Purchaser if it wants to review the details of such financing. Upon the request of a Noteholderan Eligible Purchaser, and only upon a request by such Noteholder Eligible Purchaser within three (3) Trading Business Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Trading Business Days after such request, deliver a Rights Notice to such NoteholderEligible Purchaser. The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known), the proposed closing date of the Subsequent Financing, which shall be no earlier than ten (10) Trading Business Days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Purchaser an option (the “Rights Option”) during the ten five (105) Trading Business Days following delivery of the Rights Notice (the “Option Period”) to inform the Company whether such Noteholder Eligible Purchaser will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing, provided that, the amount of such purchase shall not exceed such Purchaser’s Purchase Price hereunder except as allowed by the following sentence. If any Noteholder Purchaser elects not to participate in any such Subsequent Financing, the other Noteholder Purchasers may therein participate on a pro pro-rata basisbasis so long as such participation in the aggregate does not exceed the total Purchase Price hereunder. For purposes of this Section, all references to “pro rata” means, for any Noteholder Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number of Notes and/or Preferred Stock, (as the case may be), held Shares purchased by such Noteholder Purchaser at the Closing by (y) the total number of all of the Notes and/or Preferred Stock (as Shares purchased by all of the case may be), outstandingparticipating Purchasers at the Closing. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder any or all of Eligible Purchasers within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third partyset forth in the Rights Notice (or within sixty (60) days thereafter) without the participation of any or all of such Purchasers; provided that that, all of the material terms and conditions of the closing are the same as those provided to the Noteholder Purchasers in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur that dateon the scheduled closing date set forth in the Rights Notice (or within sixty (60) days thereafter), any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a3.12(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.12(a) shall not apply to issuances of securities in a Permitted Financing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “Permitted Financing” shall mean (i) securities issued pursuant to a bona fide acquisition of another business entity or business segment of any such entity by the Company pursuant to a merger, purchase of substantially all the assets or any type of reorganization (each an “Acquisition”) provided that (A) the Company will own more than fifty percent (50%) of the voting power of such business entity or business segment of such entity and (B) such Acquisition is approved by the Company’s Board of Directors; (ii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement or issued pursuant to this Agreement (so long as the terms governing the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Purchasers), ; (iiiii) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as such issuances are not for the primary purpose of raising capital; (iv) Common Stock issued or the issuance or grants of options to purchase Common Stock Stock, in each case, at no less than the then-applicable fair market value, pursuant to equity incentive plans that are adopted by the Company’s stock option plans and employee stock purchase plans that either Board of Directors; (xv) exist on the date hereof, or (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination), (iii) any warrants securities issued to the any placement agent and its respective designees for the transactions contemplated by this Agreement; (vi) securities issued at no less than the then-applicable fair market value to advisors or consultants (including, without limitation, financial advisors and investor relations firms) in connection with any engagement letter or consulting agreement, provided that any such issuance is approved by the Company’s Board of Directors; (ivvii) securities issued to financial institutions or lessors in connection with reasonable commercial credit arrangements, equipment financings or similar transactions, provided that any such issue is approved by the Company’s Board of Directors; (viii) securities issued to vendors or customers or to other persons in similar commercial situations as the Company, provided that any such issue is approved by the Company’s Board of Directors; (ix) securities issued in connection with a merger, consolidation, acquisition, strategic joint venture, any recapitalization of the Company; or strategic partnership relationship(x) securities issued pursuant to an underwritten public offering of its common stock.

Subsequent Financings. (a) For a period of twelve two (122) months years following the effective date of the Registration Statement (as defined in the Registration Rights Agreement)Initial Closing Date, the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “"Rights Notice”") each holder of Notes and/or Preferred Stock (as the case may be, each a “Noteholder” and collectively the “Noteholders”) Purchasers of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to each Noteholder Purchaser a Rights Notice, the Company shall first deliver to each Noteholder Purchaser a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”) within three (3) Trading Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder Purchaser if it wants to review the details of such financing. Upon the request of a NoteholderPurchaser, and only upon a request by such Noteholder Purchaser within three (3) Trading Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two three (23) Trading Days after such request, deliver a Rights Notice to such NoteholderPurchaser. The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known), the proposed closing date of the Subsequent Financing, which shall be no earlier than ten within twenty (1020) Trading Days calendar days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Purchaser an option (the “Rights Option”) during the ten (10) Trading Days following delivery of the Rights Notice (the “Option Period”) to inform the Company whether such Noteholder Purchaser will purchase up to one hundred percent (100%) of its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute material terms and conditions as contemplated by such Subsequent Financing. If any Noteholder Purchaser elects not to participate in any such Subsequent Financing, the other Noteholder Purchasers may therein participate on a pro pro-rata basisbasis so long as such participation in the aggregate does not exceed one hundred percent (100%) of the total Purchase Price hereunder. For purposes of this Section, all references to “pro rata” means, for any Noteholder Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the total number of Notes and/or Preferred Stock, (as the case may be), held Shares purchased by such Noteholder Purchaser at the Closing by (y) the total number of Shares purchased by all of the Notes and/or Preferred Stock (as participating Purchasers at the case may be), outstandingClosing. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder Purchasers within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; provided that all of the material terms and conditions of the closing are the same as substantially similar to those provided to the Noteholder Purchasers in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur that datewithin thirty (30) days following the proposed date disclosed in the Rights Notice, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a3.19(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.19(a) shall not apply to issuances of securities in a Permitted Financing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “"Permitted Financing” " shall mean (i) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (ii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement hereof or issued pursuant to this Agreement (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Purchasers), (iiiii) the Warrant Shares, (iv) the issuance of securities in connection with acquisitions, leasing arrangements, collaborations, licensing arrangements, strategic investments or other partnering arrangements, the primary purpose of which is not to raise capital, (v) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company’s stock option plans and employee stock purchase plans that either as approved by the Company’s Board of Directors, and (x) exist on the date hereof, or (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date hereof (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination), (iiivi) any warrants or other securities issued to the placement agent and its designees for the transactions contemplated by this Agreement, and (iv) securities issued in connection with a merger, consolidation, acquisition, strategic joint venture, or strategic partnership relationship.

Subsequent Financings. (a) For a period of twelve one (121) months year following the following the effective date of the Registration Statement (as defined in registration statement providing for the Registration Rights Agreement)resale of the Conversion Shares and the Warrant Shares, the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “"Rights Notice”") each holder Purchaser who has purchased at least $1,700,000 of Notes and/or Preferred Stock Shares pursuant to this Agreement (as the case may be, each a an “Noteholder” and collectively the “NoteholdersEligible Purchaser”) of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering a Rights Notice to each Noteholder a Rights NoticeEligible Purchaser, the Company shall first deliver to each Noteholder Eligible Purchaser a written notice of its the Company’s intention to effect a Subsequent Financing (“Pre-Notice”) within three (3) Trading Days of receiving an applicable offer, which Pre-Notice shall ask such Noteholder Eligible Purchaser if it wants to review the details of such financing. Upon Each Eligible Purchaser must notify the request of a Noteholder, and only upon a request by such Noteholder Company within three (3) Trading Days of receipt of the Pre-Notice that such Eligible Purchaser elects to review the details of such financing (“Pre-Notice Acceptance”). Upon the Company’s receipt of a Pre-NoticeNotice Acceptance, and only upon the Company’s receipt of a Pre-Notice Acceptance, the Company shall promptly, but no later than two (2) Trading Days after such requestreceipt, deliver a Rights Notice to such NoteholderEligible Purchaser. The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known)Financing, the proposed closing date of the Subsequent Financing, which shall be no earlier than ten within twenty (1020) Trading Days calendar days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Noteholder Eligible Purchaser an option (the “Rights Option”) during the ten seven (107) Trading Days following delivery of the Rights Notice (the “Option Period”) to inform the Company whether such Noteholder Eligible Purchaser will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. If any Noteholder Eligible Purchaser elects not to participate in any such Subsequent Financing, the other Noteholder Eligible Purchasers may therein participate on a pro pro-rata basisbasis so long as such participation in the aggregate does not exceed the aggregate Purchase Price of all Eligible Purchasers hereunder. For purposes of this Section, all references to “pro rata” means, for any Noteholder Eligible Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the number of Notes and/or Preferred Stock, (as the case may be), held Shares purchased by such Noteholder Eligible Purchaser at the Closing by (y) the total number of all of the Notes and/or Preferred Stock (as Shares purchased by all of the case may be), outstandingparticipating Eligible Purchasers at the Closing. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from the Noteholder Eligible Purchasers within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date with a third party; ­ provided that all of the material terms and conditions of the closing are the same as those provided to the Noteholder Eligible Purchasers in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur on that date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.22(a3.21(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.22(a3.21(a) shall not apply to issuances of securities in a Permitted Financing. (b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “"Permitted Financing” " shall mean (i) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (ii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement or issued pursuant to this Agreement (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Purchasers), (iiiii) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as such issuances are not for the purpose of raising capital, (iv) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company’s stock option plans and employee stock purchase plans that either (x) outstanding as they exist on the date hereofof this Agreement, (v) the payment of dividends on the Preferred Shares, or other preferred stock issued and outstanding on or prior to the date of this Agreement, in shares of Common Stock, (yvi) do not exceed ten percent (10%) the issuance of the outstanding up to 500,000 shares of Common Stock of the Company as of the date hereof relating to investor relations or public relations activities, and (such percentage subject to adjustment consistent with the terms of anti-dilution terms of the Note or of the Certificate of Designation, whichever is outstanding as of the time of determination), (iiivi) any warrants issued to the placement agent and its designees for the transactions contemplated by this the Purchase Agreement, and (iv) securities issued in connection with a merger, consolidation, acquisition, strategic joint venture, or strategic partnership relationship.