Common use of Tail Financing; Right of First Refusal Clause in Contracts

Tail Financing; Right of First Refusal. If a Closing pursuant to the Offering is completed, the Placement Agent shall be entitled to fees equal to 7.0% of the aggregate gross proceeds received by the Company from any public or private offering cash financing or capital-raising transaction of any kind (“Tail Financing”) to the extent that such Tail Financing is provided to the Company by any investors that either participate in the Offering or that the Placement Agent has in good faith introduced to the Company during the term of the Placement Agent’s engagement for this Offering, if such Tail Financing is consummated at any time within the 12-month period following the initial Closing Date. If a Closing pursuant to the Offering is completed, for a period of 18 months from the initial Closing Date, the Company grants C▇▇▇▇▇▇ the right of first refusal to act as lead managing underwriter or book runner, or as lead placement agent, for any and all equity or equity-linked offerings during such period, of the Company, or any successor to or any subsidiary of the Company. For the avoidance of doubt, the foregoing entitlement of the Placement Agent shall not apply to the offer or sale of any (i) securities or other rights issued to employees, officers, directors, contractors, advisors or consultants of the Company or other similar arrangements; (ii) securities issued upon the exercise or conversion of any options, warrants (including without limitation the Placement Agent Warrant) or other rights to purchase any securities of the Company outstanding as of the final Closing Date or issued thereafter under an exception contained in this sentence; (iii) securities issued as consideration for a merger, acquisition, joint venture or similar business combination approved by the Board of Directors of the Company; (iv) securities issued as consideration for strategic transactions or issued in connection with any loan, equipment leasing or similar commercial debt transaction in each case approved by the Board of Directors of the Company; and (v) securities issued in connection with any recapitalization of the Company (that is, securities issued in exchange for other securities of the Company)(subsections (i)-(ii) of the foregoing, “Excepted Issuances”).