Common use of Subscription Right Clause in Contracts

Subscription Right. (a) If at any time after the Closing Date, the Company determines to issue debt or equity securities of any kind (for these purposes, the term “equity securities” shall include, without limitation, Common Stock, warrants, options or other rights to acquire equity securities convertible or exchangeable into equity securities) of the Company (other than: (i) the issuance of equity securities to employees, officers or directors of, or consultants or advisors to the Company pursuant to any benefit plan approved by the Board; (ii) any equity securities issued as consideration in connection with an acquisition, merger, consolidation, restructuring, reorganization, or other change in capitalization by the company provided such transaction has been approved by the Board; (iii) any equity security issued in connection with a collaboration, disposition or acquisition or assets, product promotion, marketing, manufacturing or supply, and/or research and development, including without limitation pursuant to a license agreement, purchase agreement, (co-)promotion agreement, manufacturing agreement, collaboration or other similar agreement related thereto; or (iv) shares of Common Stock and other securities issued or issuable upon conversion or exchange of all series of preferred stock outstanding as of the date hereof) then, for so long as the Investor owns (within the meaning of Rule 13d-3 under the Exchange Act and giving effect to the conversion and exchange of all outstanding convertible and exchangeable preferred stock, including all accrued and unpaid dividends (whether or not declared) thereon, into Common Stock at the then applicable exchange rate (whether or not then exchangeable)) at least 10% of the shares of Common Stock, the Company shall: (1) give written notice to the Investor setting forth in reasonable detail (A) the designation and all of the terms and provisions of the securities proposed to be issued (the “Proposed Securities”), including, where applicable, the voting powers, preferences and relative participating, optional or other special rights, and the qualification, limitations or restrictions thereof and interest rate and maturity; (B) the price and other terms of the proposed sale of such securities; (C) the amount of such Proposed Securities; and (D) such other information as the Investor may reasonably request in order to evaluate the proposed issuance; and (2) subject to applicable law and the rules and regulations of the SEC and the NASDAQ Stock Market, offer to issue to the Investor upon the terms described in the notice delivered pursuant to Section 5.5(a)(1) above, a portion of the Proposed Securities equal to (i) the percentage of the Common Stock Owned by the Investor immediately prior to the issuance of the equity securities relative to the total number of shares of Common Stock outstanding immediately prior to the issuance of the equity securities, multiplied by (ii) the total number of Proposed Securities. Notwithstanding the foregoing, the Company shall not be required to offer or sell such Proposed Securities to the Investor if it would cause the Company to be in violation of applicable federal securities laws by virtue of such offer or sale. (b) The Investor must give notice of its intent to exercise its purchase rights hereunder within ten (10) Business Days after receipt of such notice from the Company. To the extent that the Company offers two or more securities in units, the Investor must purchase such units as a whole and will not be given the opportunity to purchase only one of the securities making up such unit. (c) Upon the expiration of the offering period described above, the Company will be free to sell such Proposed Securities that the Investor has not elected to purchase during the 90 days following such expiration on terms and conditions no more favorable to the purchasers thereof than those offered to the Investor. (d) The subscription rights established by this Section 5.5 shall not apply to, and shall terminate upon a consolidation, merger, restructuring, reorganization, recapitalization or other form of acquisition of or by the Company that results in a change of control.

Subscription Right. (a) If at any time after the Closing Datedate hereof, the Company determines proposes to issue debt or equity securities of any kind (the term "equity securities" shall include for these purposes, the term “equity securities” shall include, without limitation, Common Stock, purposes any warrants, options or other rights to acquire equity securities and debt securities convertible or exchangeable into equity securities) securities but shall not include the issuance of the Company (other than: securities (i) upon conversion of the issuance of equity securities to employeesPreferred Stock ("Preferred Stock") or Convertible Promissory Notes ("Convertible Notes") issued under the Warburg Agreement, officers or directors of, or consultants or advisors to the Company pursuant to any benefit plan approved as amended by the Board; Warburg Consent, (ii) pursuant to which the Company or any equity securities issued as consideration in connection with an acquisition, of its subsidiaries acquires another corporation or other entity by merger, consolidation, restructuringexchange offer, reorganizationshare exchange, purchase of substantially all of the assets or stock, or other change in capitalization by the company provided such transaction has been approved by the Board; form of reorganization, (iii) any equity security issued in connection with a collaboration, disposition or acquisition or assets, product promotion, marketing, manufacturing or supply, and/or research and development, including without limitation pursuant to a license agreementany employee or director stock option or incentive plans, stock bonus plan, employee stock purchase agreementplan, (co-)promotion agreementemployee savings plan, manufacturing agreementsupplemental executive retirement plan, collaboration management equity program, or other similar agreement related thereto; employee or director stock plan (iv) shares of Common Stock and other securities issued or issuable upon conversion or exchange of all series of preferred stock outstanding as to providers and/or customers of the date hereof) then, for so long as the Investor owns (within the meaning of Rule 13d-3 under the Exchange Act and giving effect Company in an amount not to the conversion and exchange of all outstanding convertible and exchangeable preferred stock, including all accrued and unpaid dividends (whether or not declared) thereon, into Common Stock at the then applicable exchange rate (whether or not then exchangeable)) at least 10exceed 2% of the shares of Common StockStock outstanding from and after the date hereof, (vi) pursuant to that certain Rights Agreement dated as of the Closing Date between the Company and ChaseMellon Shareholder Services, LLC ("Rights Agreement"), or (viii) under the Warrant Agreement between the Company and Principal dated of even date herewith) then, as to Principal, the Company shall: : (1a) give written notice to the Investor setting forth in reasonable detail (Ai) the designation and all of the terms and provisions of the securities proposed to be issued (the “"Proposed Securities”"), including, where applicable, the voting powers, preferences and relative participating, optional or other special rights, and the qualification, limitations or restrictions thereof and interest rate and maturity; (Bii) the price and other terms of the proposed sale of such securities; (Ciii) the amount of such Proposed Securitiessecurities proposed to be issued; and (Div) such other information as the Investor holders of the Securities may reasonably request in order to evaluate the proposed issuance; and (2b) subject to applicable law and the rules and regulations of the SEC and the NASDAQ Stock Market, offer to issue to the Investor Principal (and/or to any other Mutual Affiliate which shall own shares of Common Stock) upon the terms described in the notice delivered pursuant subparagraph (a) above an amount of Equity Securities identical to Section 5.5(a)(1) above, a portion of the Proposed Securities (the "Subscription Securities") equal to (i) the number of Proposed Securities to be issued times (ii) such percentage of as will allow Principal and the Common Stock Owned by the Investor immediately prior Mutual Affiliates to own, following the issuance of the equity securities relative Proposed Securities, a percentage of such Equity Securities equal to a percentage determined by dividing (x) the number of shares of Common Stock owned by Principal and/or any Mutual Affiliate immediately preceding the issuance of the Proposed Securities, by (y) the total number of shares of Common Stock outstanding immediately prior to preceding the issuance of the equity securities, multiplied Proposed Securities (provided that in no event shall such percentage determined by dividing (x) by (iiy) the total number of Proposed Securities. Notwithstanding the foregoing, the Company shall not be required to offer or sell such Proposed Securities to the Investor if it would cause the Company to be in violation of applicable federal securities laws by virtue of such offer or saleexceed 40%). (b) The Investor must give notice of its intent to exercise its purchase rights hereunder within ten (10) Business Days after receipt of such notice from the Company. To the extent that the Company offers two or more securities in units, the Investor must purchase such units as a whole and will not be given the opportunity to purchase only one of the securities making up such unit. (c) Upon the expiration of the offering period described above, the Company will be free to sell such Proposed Securities that the Investor has not elected to purchase during the 90 days following such expiration on terms and conditions no more favorable to the purchasers thereof than those offered to the Investor. (d) The subscription rights established by this Section 5.5 shall not apply to, and shall terminate upon a consolidation, merger, restructuring, reorganization, recapitalization or other form of acquisition of or by the Company that results in a change of control.

Subscription Right. (a) If at any time after the Closing Datedate hereof, the Company determines to issue debt or equity securities of any kind (for these purposes, the term “"equity securities” " shall include, without limitation, Common Stock, any warrants, options or other rights to acquire equity securities and debt securities convertible or exchangeable into equity securities) of the Company (other than: (i) the issuance of any shares of equity securities in the ordinary course to employees, officers or directors ofdirectors, or consultants or advisors to the Company pursuant to any employee benefit plan approved by the Board; (ii) any equity securities issued as consideration in connection with an acquisition, merger, consolidation, restructuring, reorganization, merger or other change in capitalization consolidation by the company Company provided such transaction acquisition, merger or consolidation has been approved by the Board; Board or (iii) any equity security warrants issued in connection with a collaboration, disposition lease or acquisition or assets, product promotion, marketing, manufacturing or supply, and/or research and development, including without limitation pursuant to a license agreement, purchase agreement, (co-)promotion agreement, manufacturing agreement, collaboration or other similar agreement related thereto; or (iv) shares of Common Stock and other securities issued or issuable upon conversion or exchange of all series of preferred stock outstanding as of financing approved by the date hereofBoard) then, as to each of WP, the ▇▇▇▇▇ Group and the Tisch Group, for so as long as the such Investor owns (within the meaning of Rule 13d-3 under the Exchange Act and giving effect to the conversion and exchange of all outstanding convertible and exchangeable preferred stock, including all accrued and unpaid dividends (whether or not declared) thereon, into Common Stock at the then applicable exchange rate (whether or not then exchangeable)) Investor group Owns at least 105% of the shares of Common Stock, the Company shall: (1) give written notice to the Investor setting forth in reasonable detail (A) the designation and all of the terms and provisions of the securities proposed to be issued (the “"Proposed Securities”"), including, where applicable, the voting powers, preferences and relative participating, optional or other special rights, and the qualification, limitations or restrictions thereof and interest rate and maturity; (B) the price and other terms of the proposed sale of such securities; (C) the amount of such Proposed Securities; and (D) such other information as the Investor Investors may reasonably request in order to evaluate the proposed issuance; and (2) subject to applicable law and the rules and regulations of the SEC and the NASDAQ Stock Market, offer to issue to the each Investor upon the terms described in the notice delivered pursuant to Section 5.5(a)(1) above, a portion of the Proposed Securities (the "Subscription Securities") equal to (i) the percentage of the Common Stock Owned by the such Investor immediately prior to the issuance of the equity securities relative to the total number of shares of Common Stock outstanding immediately prior to the issuance of the equity securities, multiplied by (ii) the total number of Proposed Securities. Notwithstanding the foregoing, the Company shall not be required to offer or sell such Proposed Securities to the Investor if it would cause the Company to be in violation of applicable federal securities laws by virtue of such offer or sale. (b) The Each Investor must give notice of its intent to exercise its purchase rights hereunder within ten (10) 5 Business Days after receipt of such notice from the Company. To the extent that the Company offers two or more securities in units, the each Investor must purchase such units as a whole and will not be given the opportunity to purchase only one of the securities making up such unit. (c) Upon the expiration of the offering period periods described above, the Company will be free to sell such Proposed Subscription Securities that the Investor has Investors have not elected to purchase during the 90 days following such expiration on terms and conditions no more favorable to the purchasers thereof than those offered to the such Investor. (d) The election by an Investor not to exercise its subscription rights established under this Section 5.5 in any one instance shall not affect its right (other than in respect of a reduction in its percentage holdings) as to any subsequent proposed issuance. Any sale of such securities by the Company without first giving each Investor the rights described in this Section 5.5 shall not apply to, be void and shall terminate upon a consolidation, merger, restructuring, reorganization, recapitalization or other form of acquisition of or by the Company that results in a change of controlno force and effect.

Subscription Right. (a) If at any time after the Closing Datedate hereof, the Company determines to issue debt or equity securities of any kind (for these purposes, the term “"equity securities” " shall include, without limitation, Common Stock, any warrants, options or other rights to acquire equity securities and debt securities convertible or exchangeable into equity securities) of the Company (other than: (i) the issuance of any shares of equity securities in the ordinary course to employees, officers or directors ofdirectors, or consultants or advisors to the Company pursuant to any employee benefit plan approved by the Board; (ii) any equity securities issued as consideration in connection with an acquisition, merger, consolidation, restructuring, reorganization, merger or other change in capitalization consolidation by the company Company provided such transaction acquisition, merger or consolidation has been approved by the Board; Board or (iii) any equity security warrants issued in connection with a collaboration, disposition lease or acquisition or assets, product promotion, marketing, manufacturing or supply, and/or research and development, including without limitation pursuant to a license agreement, purchase agreement, (co-)promotion agreement, manufacturing agreement, collaboration or other similar agreement related thereto; or (iv) shares of Common Stock and other securities issued or issuable upon conversion or exchange of all series of preferred stock outstanding as of financing approved by the date hereofBoard) then, as to each of WP, the ▇▇▇▇▇ Group and the Tisch Group, for so as long as the such Investor owns (within the meaning of Rule 13d-3 under the Exchange Act and giving effect to the conversion and exchange of all outstanding convertible and exchangeable preferred stock, including all accrued and unpaid dividends (whether or not declared) thereon, into Common Stock at the then applicable exchange rate (whether or not then exchangeable)) Investor group Owns at least 105% of the shares of Common Stock, the Company shall: (1) give written notice to the Investor setting forth in reasonable detail (A) the designation and all of the terms and provisions of the securities proposed to be issued (the “"Proposed Securities”"), including, where applicable, the voting powers, preferences and relative participating, optional or other special rights, and the qualification, limitations or restrictions thereof and interest rate and maturity; (B) the price and other terms of the proposed sale of such securities; (C) the amount of such Proposed Securities; and (D) such other information as the Investor Investors may reasonably request in order to evaluate the proposed issuance; and (2) subject to applicable law and the rules and regulations of the SEC and the NASDAQ Stock Market, offer to issue to the each Investor upon the terms described in the notice delivered pursuant to Section 5.5(a)(15.5 (a) (1) above, a portion of the Proposed Securities (the "Subscription Securities") equal to (i) the percentage of the Common Stock Owned by the such Investor immediately prior to the issuance of the equity securities relative to the total number of shares of Common Stock outstanding immediately prior to the issuance of the equity securities, multiplied by (ii) the total number of Proposed Securities. Notwithstanding the foregoing, the Company shall not be required to offer or sell such Proposed Securities to the Investor if it would cause the Company to be in violation of applicable federal securities laws by virtue of such offer or sale. (b) The Investor must give notice of its intent to exercise its purchase rights hereunder within ten (10) Business Days after receipt of such notice from the Company. To the extent that the Company offers two or more securities in units, the Investor must purchase such units as a whole and will not be given the opportunity to purchase only one of the securities making up such unit. (c) Upon the expiration of the offering period described above, the Company will be free to sell such Proposed Securities that the Investor has not elected to purchase during the 90 days following such expiration on terms and conditions no more favorable to the purchasers thereof than those offered to the Investor. (d) The subscription rights established by this Section 5.5 shall not apply to, and shall terminate upon a consolidation, merger, restructuring, reorganization, recapitalization or other form of acquisition of or by the Company that results in a change of control.

Subscription Right. (a) If at any time after the Closing Date, the Company determines to issue debt or equity securities of any kind (for these purposes, the term “equity securities” shall include, without limitation, Common Stock, warrants, options or other rights to acquire equity securities convertible or exchangeable into equity securities) of the Company (other than: (i) the issuance of equity securities to employees, officers or directors of, or consultants or advisors to the Company pursuant to any benefit plan approved by the Board; (ii) any equity securities issued as consideration in connection with an acquisition, merger, consolidation, restructuring, reorganization, or other change in capitalization by the company provided such transaction has been approved by the Board; (iii) any equity security issued in connection with a collaboration, disposition or acquisition or assets, product promotion, marketing, manufacturing or supply, and/or research and development, including without limitation pursuant to a license agreement, purchase agreement, (co-)promotion agreement, manufacturing agreement, collaboration or other similar agreement related thereto; or (iv) shares of Common Stock and other securities issued or issuable upon conversion or exchange of all series of preferred stock outstanding as of the date hereof) then, for so long as the Investor owns (within the meaning of Rule 13d-3 under the Exchange Act and giving effect to the conversion and exchange of all outstanding convertible and exchangeable preferred stock, including all accrued and unpaid dividends (whether or not declared) thereon, into Common Stock at the then applicable exchange rate (whether or not then exchangeable)) at least 10% of the shares of Common Stock, the Company shall: (1) give written notice to the Investor setting forth in reasonable detail (A) the designation and all of the terms and provisions of the securities proposed to be issued (the “Proposed Securities”), including, where applicable, the voting powers, preferences and relative participating, optional or other special rights, and the qualification, limitations or restrictions thereof and interest rate and maturity; (B) the price and other terms of the proposed sale of such securities; (C) the amount of such Proposed Securities; and (D) such other information as the Investor may reasonably request in order to evaluate the proposed issuance; and (2) subject to applicable law and the rules and regulations of the SEC and the NASDAQ Stock Market, offer to issue to the Investor upon the terms described in the notice delivered pursuant to Section 5.5(a)(1) above, a portion of the Proposed Securities equal to (i) the percentage of the Common Stock Owned by the Investor immediately prior to the issuance of the equity securities relative to the total number of shares of Common Stock outstanding immediately prior to the issuance of the equity securities, multiplied by (ii) the total number of Proposed Securities. Notwithstanding the foregoing, the Company shall not be required to offer or sell such Proposed Securities to the Investor if it would cause the Company to be in violation of applicable federal securities laws by virtue of such offer or sale. (b) The Investor must give notice of its intent to exercise its purchase rights hereunder within ten (10) Business Days after receipt of such notice from the Company. To the extent that the Company offers two or more securities in units, the Investor must purchase such units as a whole and will not be given the opportunity to purchase only one of the securities making up such unit. (c) Upon the expiration of the offering period described above, the Company will be free to sell such Proposed Securities that the Investor has not elected to purchase during the 90 days following such expiration on terms and conditions no more favorable to the purchasers thereof than those offered to the Investor. (d) The subscription rights established by this Section 5.5 shall not apply to, and shall terminate upon a consolidation, merger, restructuring, reorganization, recapitalization or other form of acquisition of or by the Company that results in a change of control.