Common use of Fifth Closing Clause in Contracts

Fifth Closing. Upon the terms and subject to the conditions set forth in this Agreement, the fifth closing (the Fifth Closing ) shall take place within five (5) days following the Milestone Target Payment Date applicable to Milestone 4 upon the satisfaction of the conditions set forth in Section 5.2 and Section 6.2 applicable to the Fifth Closing (or such other time and place as the Parties may agree) (the Fifth Closing Date ). At the Fifth Closing, the following shall occur: (a) in the event the Purchaser elects to purchase Series B Preferred at the Fifth Closing, the Purchaser shall deliver to the Company an amount in U.S. Dollars in immediately available funds that is not greater than the Maximum Total Series B Investment (such actual amount being the Fifth Closing Payment ), and, in exchange therefor, the Company shall issue and sell to the Purchaser, and the Purchaser shall accept (subject to Section 1.9), a number of shares of Series B-4 Preferred equal to (x) the Fifth Closing Payment divided by (y) the Series B-4 Purchase Price (as defined in the Series B Certificate of Designations); (b) in the event the Purchaser elects to pay to the Company the Fifth Closing Payment specified above, the Company shall execute and deliver a Warrant in favor of the Purchaser, convertible into such number of shares of Common Stock equal to 25% of the number of shares of Common Stock into which the Series B-4 Preferred purchased pursuant to Section 1.5(a) above are convertible on the date of issuance of the Series B-4 Preferred; (c) provided that the Purchaser makes the Minimum Series B Investment (as determined after crediting the Purchaser, in accordance with Section 1.7 below, for any Excess Series B Investment (as defined below) paid by the Purchaser at the prior Closings) at the Fifth Closing, the Company shall issue to the Purchaser, and the Purchaser may choose to accept (at its sole discretion, but subject to Section 1.8 and Section 1.9), such number of shares of Series A-4 Preferred that equal, when combined with such number of the Series B-4 Preferred and Warrants, if any, purchased by the Purchaser at the Fifth Closing with the Minimum Series B Investment, a 4.9% Ownership Interest. For purposes of clarity, in the event that the Purchaser elects to invest more than the Minimum Series B Investment at the Fifth Closing, only such number of Series B-4 Preferred and Warrants as would have been purchased with the Minimum Series B Investment shall be counted in determining the 4.9% Ownership Interest. Notwithstanding the foregoing, the Company shall issue to the Purchaser a number of shares of Series A-4 Preferred with a Series A Liquidation Value equal to at least $1,250,000, regardless of whether such number of shares results in the Purchaser acquiring greater than a 4.9% Ownership Interest at the Fifth Closing (but in no event shall Purchaser acquire greater than a 10% Ownership Interest at the Fifth Closing, without regard to the Ownership Interest acquired by Purchaser at any prior Closing), provided, however, that, in the event the Purchaser does not elect to pay the Company at least the Minimum Series B Investment (as determined after crediting the Purchaser, in accordance with Section 1.7 below, for any previously unapplied Excess Series B Investment (as defined below) paid by the Purchaser at the prior Closings) at the Fifth Closing, the Company shall issue to the Purchaser, and the Purchaser shall be entitled to receive, only the greater of (i) a number of shares of Series A-4 Preferred equal to a 2.45% Ownership Interest, and (ii) a number of shares of Series A-4 Preferred with a Series A Liquidation Value equal to $625,000, but not in any event to exceed a maximum 2% Ownership Interest; (d) the Company shall deliver an Opinion of Counsel applicable to the Fifth Closing; (e) updated Schedules to this Agreement (which update of the representations and warranties shall reflect that a Material Adverse Effect has not occurred since the prior Closing); (f) the President of the Company shall deliver to the Purchaser at the Closing a certificate certifying that the conditions specified in Section 5.2(a) and Section 5.2(b) applicable to the Fifth Closing have been fulfilled; (g) the Company shall reserve a sufficient number of shares of Common Stock to account for the conversion of all of the outstanding Preferred Shares plus the exercise of all of the outstanding Warrants (taking into account the Fifth Closing and including any Deferred Securities under Section 1.8 and Excess Shares under Section 1.9); and (h) the Company and the Purchaser shall execute and deliver any other documents and agreements necessary or desirable to accomplish the foregoing.

Fifth Closing. Upon Unless otherwise agreed to by both of the terms and subject to the conditions set forth in this AgreementPurchasers, the fifth closing of the purchase of the Shares and under this Agreement pursuant to Section 1.2(e) by the Purchasers and all related transactions contemplated hereby (the “Fifth Closing”; the First Closing, the Second, the Third Closing, the Fourth Closing and the Fifth Closing are sometimes referred to herein collectively as the “Closings” and individually as a “Closing”) shall take place at the offices of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, on a business date (such date shall hereinafter be referred to as the “Fifth Closing Date”; the First Closing Date, the Second Closing Date, the Third Closing Date, the Fourth Closing Date and the Fifth Closing Date are sometimes referred to herein collectively as the “Closing Dates” and individually as a “Closing Date”) within five thirty (530) days following the Milestone Target Payment Date applicable to Milestone 4 date upon the satisfaction which each of the conditions set forth Purchasers provide written notice to the Company that each of the following events has occurred: (i) a final study report for the phase IIa clinical trial for AN-117/MT-210 has been delivered to each Purchaser; (ii) each Purchaser has determined that the results of such phase IIa clinical trial warrant the continued development of AN-117/MT-210; and (iii) the agreement by the Purchasers, in Section 5.2 and Section 6.2 applicable each of their sole discretion, on the use of the proceeds for the funds to be raised by the Fifth Closing (or such other time and place as the Parties may agree) (the “Fifth Closing Date Approval”). At Upon the occurrence of a Fifth Closing Approval, the Company shall promptly send to each Purchaser written notice thereof and the date of the Fifth Closing, . Each of the following Purchasers shall occur: (a) in the such event the Purchaser elects to purchase Series B Preferred at the Fifth Closing, the Purchaser shall deliver to the Company an the aggregate amount in U.S. Dollars in immediately available funds that is not greater than the Maximum Total Series B Investment (such actual amount being the Fifth Closing Payment ), and, in exchange therefor, the Company shall issue and sell to the Purchaser, and the Purchaser shall accept (subject to Section 1.9), a number of shares of Series B-4 Preferred equal to (x) the Fifth Closing Payment divided by (y) the Series B-4 Purchase Price (as defined in the Series B Certificate of Designations); (b) in the event the Purchaser elects to pay to the Company the Fifth Closing Payment specified above, the Company shall execute and deliver a Warrant in favor of the Purchaser, convertible into such number of shares of Common Stock equal purchase price for the Shares to 25% of the number of shares of Common Stock into which the Series B-4 Preferred be purchased pursuant to Section 1.5(a) above are convertible on the date of issuance of the Series B-4 Preferred; (c) provided that the Purchaser makes the Minimum Series B Investment (as determined after crediting the Purchaser, in accordance with Section 1.7 below, for any Excess Series B Investment (as defined below) paid by the Purchaser at the prior Closings) at the Fifth Closing, the Company shall issue to the Purchaser, and the Purchaser may choose to accept (at its sole discretion, but subject to Section 1.8 and Section 1.9), such number of shares of Series A-4 Preferred that equal, when combined with such number of the Series B-4 Preferred and Warrants, if any, purchased by the Purchaser at the Fifth Closing with the Minimum Series B Investment, a 4.9% Ownership Interest. For purposes of clarity, in the event that the by each Purchaser elects to invest more than the Minimum Series B Investment at the Fifth Closing, only such number of Series B-4 Preferred and Warrants as would have been purchased with the Minimum Series B Investment shall be counted in determining the 4.9% Ownership Interest. Notwithstanding the foregoing, the Company shall issue to the Purchaser a number of shares of Series A-4 Preferred with a Series A Liquidation Value equal to at least $1,250,000, regardless of whether such number of shares results in the Purchaser acquiring greater than a 4.9% Ownership Interest at the Fifth Closing (but in no event shall Purchaser acquire greater than a 10% Ownership Interest at the Fifth Closing, without regard to the Ownership Interest acquired by Purchaser at any prior Closing), provided, however, that, in the event the Purchaser does not elect to pay the Company at least the Minimum Series B Investment (as determined after crediting the Purchaser, in accordance with Section 1.7 below, for any previously unapplied Excess Series B Investment (as defined below) paid by the Purchaser at the prior Closings) at the Fifth Closing, the Company shall issue to the Purchaserwire transfer or cashier’s check, and the Purchaser shall be entitled to receive, only the greater of (i) a number of shares of Series A-4 Preferred equal to a 2.45% Ownership Interest, and (ii) a number of shares of Series A-4 Preferred with a Series A Liquidation Value equal to $625,000, but not in any event to exceed a maximum 2% Ownership Interest; (d) the Company shall deliver an Opinion of Counsel applicable to the Fifth Closing; (e) updated Schedules to this Agreement (which update of the representations and warranties shall reflect that a Material Adverse Effect has not occurred since the prior Closing); (f) the President of the Company shall deliver to each Purchaser certificates representing either the Purchaser number of Shares acquired. If at the Fifth Closing a certificate certifying that any of the conditions or obligations specified in Section 5.2(a) and Section 5.2(b) applicable to the Fifth Closing 5.1 below shall not have been fulfilled; (g) the Company shall reserve a sufficient number of shares of Common Stock to account for the conversion , each Purchaser shall, at its election, be relieved of all of the outstanding Preferred Shares plus the exercise of all of the outstanding Warrants (taking into account the Fifth Closing and including any Deferred Securities its obligations under Section 1.8 and Excess Shares under Section 1.9); and (h) the Company and the Purchaser shall execute and deliver this Agreement without thereby waiving any other documents and agreements necessary rights it may have by reason of such failure or desirable to accomplish the foregoingsuch non-fulfillment.