Common use of Third Closing Clause in Contracts

Third Closing. (a) If (i) the Company publicly announces the Third Closing Milestone Event and following such announcement the average VWAP of the Common Stock for each of the immediately subsequent five (5) Trading Days is at least $0.7325 per share (as adjusted for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement and prior to the Third Closing Date (which is 125% of the Per Share Purchase Price)) or (ii) the Company receives written notice from a Purchaser waiving subsection (i) above and desires to effect the Third Closing (as to the Subscription Amount of such waiving Purchaser only), then the Company will promptly distribute (and in any event within two (2) Trading Days of such public announcement and achievement of (i) above or receipt of such written notice pursuant to (ii) above) to each Purchaser a notice identifying the date of the Third Closing. If Company terminates the Niyad NEPHRO CRRT study then the right of a Purchaser to request a Third Closing shall terminate, and the Company shall be under no obligation to sell and issue any further Securities to the Purchasers. (b) On or prior to the Third Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following: (i) the Company shall have provided each Purchaser with the Company’s wire instructions; (ii) a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to establish via the direct registration system a book-entry notation for that number of Shares equal to such Purchaser’s Third Closing Subscription Amount applicable to the Shares divided by the Per Share Purchase Price and registered in the name of such Purchaser (minus the number of shares of Common Stock issuable upon exercise of such Purchaser’s Pre-Funded Warrants, if applicable); (iii) if applicable, for each Purchaser of Pre-Funded Warrants pursuant to Section 2.1, a Pre-Funded Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to the portion of such Purchaser’s Third Closing Subscription Amount applicable to Pre-Funded Warrants divided by the Per Share Purchase Price minus $0.001, with an exercise price equal to $0.001 per share of Common Stock, subject to adjustment therein; (iv) a legal opinion of Company Counsel, directed to the Purchasers, in form and substance reasonably acceptable to the Purchasers; and (c) On or prior to the Third Closing Date, each Purchaser shall deliver or cause to be delivered to the Company such Purchaser’s Third Closing Subscription Amount by wire transfer to the account specified in writing by the Company.

Third Closing. (A) Subject to the terms and conditions set forth in Section 4.2 and elsewhere in this Agreement, the Company shall have the right to deliver a written notice to the Purchasers (a "Third Closing Notice") requiring the Purchasers to purchase up to an additional 600 Units (the "Third Tranche Units" and together with the Second Tranche Units, the "Additional Units") for an aggregate purchase price of $1,200,000 (the "Third Tranche Purchase Price"). 3 The Company may deliver a Third Closing Notice no earlier than 60 days after the date on which the initial Registration Statement filed with the Commission with respect to the Units has been declared effective by the Commission and no later than 90 days after such effective date. Such Third Closing Notice shall set forth the number of Third Tranche Units that the Company intends to sell to the Purchasers. At the Third Closing each Purchaser shall be obligated (subject to the terms and conditions herein) to purchase such portion of the Third Tranche Units sold by the Company as equals such Purchaser's pro rata portion of the purchase price for the Initial Units issued and sold at the Initial Closing. The closing of the purchase and sale of the Third Tranche Units (the "Third Closing") shall take place in the same manner as the Initial Closing, on such date indicated in the Third Closing Notice (which may not be prior to the 10th day after receipt by the Purchasers of the Third Closing Notice or as otherwise agreed to by the parties); provided, however, that in no case shall the Third Closing take place unless and until the conditions listed in Section 4.2 have been satisfied or waived by the appropriate party. The date of the Third Closing is hereinafter referred to as the "Third Closing Date.") (B) At the Third Closing (a) If the Company shall deliver to each Purchaser (i1) stock certificates representing the shares of Preferred Stock included in the Third Tranche Units (the "Third Tranche Shares" and together with the Initial Shares and the Second Tranche Shares, the "Shares") purchased by such Purchaser as set forth next to such Purchaser's name on Schedule 1 attached hereto, each registered in the name of such Purchaser, (2) the Company publicly announces Warrants included in the Third Closing Milestone Event Tranche Units (the "Third Tranche Warrants") purchased by such Purchaser as set forth next to such Purchaser's name on Schedule 1 attached hereto, registered in the name of such Purchaser and following such announcement the average VWAP of the Common Stock for each of the immediately subsequent five (53) Trading Days is and all other documents, instruments and writings required to have been delivered at least $0.7325 per share (as adjusted for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement and or prior to the Third Closing Date (which is 125% of the Per Share Purchase Price)) or (ii) by the Company receives written notice from a pursuant to this Agreement and the Registration Rights Agreement, and (b) each Purchaser waiving subsection (i) above and desires to effect the Third Closing (as shall deliver to the Subscription Amount of such waiving Purchaser only), then Company the Company will promptly distribute (and in any event within two (2) Trading Days of such public announcement and achievement of (i) above or receipt of such written notice pursuant to (ii) above) to each Purchaser a notice identifying the date portion of the Third Closing. If Company terminates the Niyad NEPHRO CRRT study then the right of a Purchaser Tranche Purchase Price set forth next to request a Third Closing shall terminateits name on Schedule 1, and in United States dollars in immediately available funds by wire transfer to an account designated in writing by the Company shall be under no obligation to sell and issue any further Securities to the Purchasers. (b) On for such purpose on or prior to the Third Closing Date, the Company shall deliver or cause and all documents, instruments and writings required to be have been delivered to each Purchaser the following: (i) the Company shall have provided each Purchaser with the Company’s wire instructions; (ii) a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to establish via the direct registration system a book-entry notation for that number of Shares equal to such Purchaser’s Third Closing Subscription Amount applicable to the Shares divided by the Per Share Purchase Price and registered in the name of such Purchaser (minus the number of shares of Common Stock issuable upon exercise of such Purchaser’s Pre-Funded Warrants, if applicable); (iii) if applicable, for each Purchaser of Pre-Funded Warrants pursuant to Section 2.1, a Pre-Funded Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to the portion of such Purchaser’s Third Closing Subscription Amount applicable to Pre-Funded Warrants divided by the Per Share Purchase Price minus $0.001, with an exercise price equal to $0.001 per share of Common Stock, subject to adjustment therein; (iv) a legal opinion of Company Counsel, directed to the Purchasers, in form and substance reasonably acceptable to the Purchasers; and (c) On at or prior to the Third Closing Date, each by such Purchaser shall deliver or cause pursuant to be delivered to this Agreement and the Company such Purchaser’s Registration Rights Agreement. The Second Closing and the Third Closing Subscription Amount by wire transfer are hereinafter collectively referred to as the account specified in writing by "Subsequent Closings," and the CompanySecond Closing Date and the Third Closing Date are hereinafter referred to as the "Subsequent Closing Dates." 4

Third Closing. As soon as practicable after the fourth anniversary of the Closing Date, but in no event more than 15 days following such anniversary, the parties shall calculate the net present value ("NPV") of Schlumberger's and Bake▇ ▇▇▇h▇▇' ▇▇lticlient Survey Library as of the Closing Date using the aggregate sales revenue for each calendar quarter generated by that library during such four-year period, discounted to the Closing Date at a rate of LIBOR (as of the Closing Date) plus one percent, such aggregate sales revenue to include any transfer fees, settlement amounts and commitments to license additional amounts going forward pursuant to settlements which the parties have received or to which they are entitled. Such revenues shall be determined in accordance with GAAP applied on a basis consistent with principles to be used by the Venture Entities. Revenue from acreage covered by both libraries will be allocated between the libraries according to the Initial Percentages (defined below). The percentage that the NPV of Schlumberger's library or Bake▇ ▇▇▇h▇▇' ▇▇brary, as the case may be, bears to the total combined NPV of Schlumberger's library and Bake▇ ▇▇▇h▇▇' ▇▇brary (the "NPV TOTAL") is such party's "NPV PERCENTAGE." In the event that Schlumberger's and Bake▇ ▇▇▇h▇▇' ▇▇V Percentages are equal to their respective Initial Percentages, no adjusting payment will be made by either party to the other. In the event either party's NPV Percentage is less than such party's Initial Percentage, such party (the "PAYOR PARTY") shall pay to the other party in cash, promptly following agreement by Schlumberger and Bake▇ ▇▇▇h▇▇ ▇▇ the calculation of the NPV Total, the "ADJUSTMENT Amount," which will be equal to (1) or (2): (1) In the event the NPV Total is less than the Original Total, (a) If the difference between the Payor Party's Initial Percentage and NPV Percentage times (ib) the Company publicly announces the Third Closing Milestone Event and following such announcement the average VWAP of the Common Stock for each of the immediately subsequent five (5) Trading Days is at least $0.7325 per share (as adjusted for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement and prior to the Third Closing Date (which is 125% of the Per Share Purchase Price)) or (ii) the Company receives written notice from a Purchaser waiving subsection (i) above and desires to effect the Third Closing (as to the Subscription Amount of such waiving Purchaser only), then the Company will promptly distribute (and in any event within two NPV Total; or (2) Trading Days In the event the NPV Total is more than the Original Total, (a) the difference between the Payor Party's Initial Percentage and NPV Percentage times (b) the Original Total; provided, however, that in no event shall the Adjustment Amount exceed US$100 million payable by Schlumberger and its Affiliates or Bake▇ ▇▇▇h▇▇ ▇▇▇ its Affiliates, nor shall any such payments affect the agreed-upon Percentage Interests. The Payor Party may, in its discretion, cause one or more of its Affiliates to pay the Adjustment Amount to the other party. At the time of such public announcement payment, the Payor Party and achievement the party receiving the Adjustment Amount shall negotiate in good faith to agree on the allocation of (i) above the Adjustment Amount between the U.S. and non-U.S. components of the Multiclient Survey Libraries, and failing such agreement, shall allocate the Adjustment Amount in accordance with the ratios set forth on Exhibit 3.10(c). Insofar as a payment is to be made to Bake▇ ▇▇▇h▇▇ ▇▇▇h respect to the U.S. component of the Multiclient Survey Libraries, STC shall, for purposes of this Section 3.10(c), be included in the term "Payor Party." Schlumberger and Bake▇ ▇▇▇h▇▇ ▇▇▇ll each designate two entities, one U.S. and one non-U.S., to receive as nominee, to the extent practicable, all payments due to Schlumberger or receipt Bake▇ ▇▇▇h▇▇ ▇▇▇er this Section. US Venture Entity and the Non-U.S. Venture Entity Group also shall each designate an entity to receive as nominee, to the extent practicable, all payments due to them under this Section. The parties shall have a period of such 15 days after the later of the delivery to them of the calculation of the Adjustment Amount and the access to all related workpapers and relevant employees to review and make any objections to the calculation of the Adjustment Amount that the parties may have in writing to the other parties. If no written notice pursuant objections to (ii) above) the calculation of the Adjustment Amount are delivered to each Purchaser a notice identifying any party within the date 15-day period, the calculation of the Adjustment Amount shall be deemed to be accepted and approved by the parties, and the Third Closing. If Company terminates the Niyad NEPHRO CRRT study then the right of a Purchaser to request a Third Closing shall terminate, and the Company if necessary, shall be under no obligation to sell and issue any further Securities to the Purchasers. (bheld in accordance with this Section 3.10(c) On on or prior to the 30th day following the fourth anniversary of the Closing Date at such time and place as the parties may mutually agree. If written objections of any party to the calculation of the Adjustment Amount are delivered to any other party within the 15-day period, then the parties shall attempt to resolve the matter or matters in dispute. Any objecting party shall quantify its objections to the extent reasonably practicable in all written objections delivered to any other party with respect to the calculation of the Adjustment Amount. If such disputes cannot be resolved by the parties within five days after the delivery of the objections to the calculation of the Adjustment Amount, then the specific matters in dispute shall be submitted to the Independent Accountants, which firm shall render its opinion as to such matters within 30 days. Based on that opinion, the Independent Accountants shall then send to each of the parties a written determination of the matters in dispute and a written determination of any adjustments to the calculation of the Adjustment Amount based upon such opinion, whereupon the confirmed or revised calculation of the Adjustment Amount shall be final and binding upon the parties. The Third Closing Date, shall not occur until each of the Company shall deliver or cause to be delivered to each Purchaser the following: (i) the Company parties shall have provided each Purchaser with received the Company’s wire instructions; documents prepared by the Independent Accountants evidencing that opinion. All costs, fees and expenses charged or incurred by the Independent Accountants, if any, shall be borne by the party against whom the Independent Accountants render their opinion; provided, however, that if such opinion does not clearly identify a losing party, such costs, fees and expenses shall be borne equally by Bake▇ ▇▇▇h▇▇ ▇▇▇ Schlumberger. The parties agree that interest shall be paid on the Adjustment Amount at a rate of LIBOR (ii) a copy as of the irrevocable instructions 36th day after the fourth anniversary of the Closing Date) plus one percent for the period beginning on the 36th day after the fourth anniversary of the Closing Date and ending on the date such Adjustment Amount is paid. The parties shall use their good faith efforts to calculate and agree upon the Bake▇ ▇▇▇h▇▇ ▇▇▇tial Percentage and the Schlumberger Initial Percentage within 90 days following the Closing Date. Bake▇ ▇▇▇h▇▇ ▇▇▇ll certify in writing to Schlumberger the calculation of the Bake▇ ▇▇▇h▇▇ ▇▇▇tial Percentage as agreed upon and Schlumberger shall certify in writing to Bake▇ ▇▇▇h▇▇ ▇▇▇ calculation of the Schlumberger Initial Percentage as agreed upon. Schlumberger and Bake▇ ▇▇▇h▇▇ ▇▇▇ee that each Venture Entity shall manage the contributed multiclient survey libraries in a manner not intended to favor either Schlumberger or Bake▇ ▇▇▇h▇▇ ▇▇▇h respect to the Transfer Agent instructing the Transfer Agent to establish via the direct registration system a book-entry notation for that number of Shares equal to such Purchaser’s Third Closing Subscription Amount applicable to the Shares divided by the Per Share Purchase Price and registered calculations set forth in the name of such Purchaser (minus the number of shares of Common Stock issuable upon exercise of such Purchaser’s Pre-Funded Warrants, if applicablethis Section 3.10(c); (iii) if applicable, for each Purchaser of Pre-Funded Warrants pursuant to Section 2.1, a Pre-Funded Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to the portion of such Purchaser’s Third Closing Subscription Amount applicable to Pre-Funded Warrants divided by the Per Share Purchase Price minus $0.001, with an exercise price equal to $0.001 per share of Common Stock, subject to adjustment therein; (iv) a legal opinion of Company Counsel, directed to the Purchasers, in form and substance reasonably acceptable to the Purchasers; and (c) On or prior to the Third Closing Date, each Purchaser shall deliver or cause to be delivered to the Company such Purchaser’s Third Closing Subscription Amount by wire transfer to the account specified in writing by the Company.

Third Closing. (a) If (i) Subject to the Company publicly announces the Third Closing Milestone Event terms hereof and following such announcement the average VWAP Section 7 and ------------- notwithstanding any provision of the Common Stock for September Purchase Agreement to the contrary, each of the immediately subsequent five (5) Trading Days is at least $0.7325 per share (as adjusted for reverse Lender and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock Zoltek agree that occur after the date of this Agreement and prior to the Third Closing Date (which is 125% of shall occur on the Per Share Purchase Price)) or (ii) the Company receives written notice from a Purchaser waiving subsection (i) above and desires to effect the Third Closing (as to the Subscription Amount of such waiving Purchaser only), then the Company will promptly distribute (and in any event within two (2) Trading Days of such public announcement and achievement of (i) above or receipt of such written notice pursuant to (ii) above) to each Purchaser a notice identifying Business Day following the date of the Nasdaq Approval (as defined below). 2.1. In connection with the Third Closing. If Company terminates the Niyad NEPHRO CRRT study then the right of a Purchaser to request a Third Closing , Zoltek shall terminate, and the Company shall be under no obligation to sell and issue any further Securities to the Purchasers. (b) On or prior to the Third Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following: Lender (i) a note in the Company shall have provided each Purchaser with form of Exhibit B-1 hereto (the Company’s wire instructions; (ii) a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to establish via the direct registration system a book-entry notation for that number of Shares equal to such Purchaser’s Third Closing Subscription Amount applicable to the Shares divided by the Per Share Purchase Price and "April ----------- Notes I"), registered in the name of such Purchaser Lender in the aggregate principal amount of the purchase price indicated opposite such Lender's name of Schedule A hereto, and (minus ii) a warrant in the form ---------- of Exhibit C-1 hereto (the "April Warrants I"), registered in the ----------- name of such Lender pursuant to which such Lender shall have the right to acquire the number of shares of Common Stock issuable upon exercise indicated opposite such Lender's name on Schedule A hereto under the heading ---------- "April Warrants I-Warrant Shares". The aggregate principal amount of such Purchaser’s Pre-Funded WarrantsApril Notes I issued to the Lenders under the Third Closing shall be $20,000,000. The Conversion Price of the April I Notes shall be $25.51; provided, however, that if applicable);the press release -------- ------- required under Section 8.4 has not been issued prior to 11am Eastern time, the Conversion Price of the April I Notes shall be the lesser of (i) $25.51 and (ii) the last bid price at 11:01 am as reported on Bloomberg. (iii) if applicable2.2. Zoltek shall deliver to each Lender the remaining closing deliveries under Section 2.8 of the September Purchase Agreement and each Lender shall deliver to Zoltek, for each Purchaser in immediately available funds by wire transfer to an account designed by Zoltek, its respective purchase price. 2.3. For the purposes of Pre-Funded Warrants pursuant this Amendment, the term "Nasdaq Approval" shall mean the date in which the Company receives approval from Nasdaq to Section 2.1, a Pre-Funded Warrant registered in issue all of the name of such Purchaser to purchase up to a number of securities and the underlying shares of Common Stock equal contemplated by this Amendment. Zoltek shall use its best efforts to obtain the portion Nasdaq Approval as promptly as possible. To the extent Nasdaq requires Zoltek to obtain the consent of such Purchaser’s Third Closing Subscription Amount applicable to Pre-Funded Warrants divided by its shareholders, Zoltek hereby agrees that the Per Share Purchase Price minus $0.001, with an exercise price equal to $0.001 per share provisions of Common Stock, subject to adjustment therein; (ivSection 5(b)(iii) a legal opinion of Company Counsel, directed to the Purchasers, in form April I Notes shall apply and substance reasonably acceptable to the Purchasers; and (c) On or prior to the Third Closing Date, each Purchaser shall deliver or cause to be delivered to the Company such Purchaser’s Third Closing Subscription Amount by wire transfer to the account specified in writing by the Companyare hereby incorporated into this Amendment.

Third Closing. (a) If (i) the Company publicly announces Second Closing is consummated, then the Third Closing Milestone Event and shall occur at 10:00 am (New York City time) on the third (3rd) Business Day following such announcement the average VWAP date on which all of the Common Stock conditions set forth in Section 2.3 shall have been satisfied or, if applicable, waived by the party entitled to the benefit thereof, or at such other time and location as the parties shall mutually agree in writing; provided, that if the Requisite Stockholder Approval is not successfully obtained at the Stockholders’ Meeting (for each of clarity, the immediately subsequent five (5) Trading Days is at least $0.7325 per share (as adjusted for reverse and forward stock splitsfirst such meeting to occur), stock dividends, stock combinations and other similar transactions of then the Common Stock that occur after the date of this Agreement and prior parties’ rights with regard to the Third Closing Date (which is 125% and the possible issuance of the Per Share Purchase Price)) or (ii) the Company receives written notice from a Purchaser waiving subsection (i) above and desires to effect the Third Closing (as Shares by the Company to the Purchasers at the Third Closing shall terminate and be of no further force or effect. At the Third Closing, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, the Third Closing Shares in exchange for payment by the Purchasers, severally and not jointly, of an aggregate amount equal to the Third Closing Purchase Price. Each Purchaser’s applicable Subscription Amount of as set forth on the signature page hereto executed by such waiving Purchaser only), then shall be made available for “Delivery Versus Payment” settlement with the Company will promptly distribute (and in any event within two (2) Trading Days of such public announcement and achievement of (i) above or receipt of such written notice pursuant to (ii) above) its designee. At the Third Closing, the Company shall deliver to each Purchaser a notice identifying its respective pro rata share of the date of Third Closing Shares (based on such Purchaser’s applicable Subscription Amount relative to the aggregate Third Closing Purchase Price) (such Purchaser’s “Applicable Third Closing Shares”), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Third Closing. If Company terminates Settlement of the Niyad NEPHRO CRRT study then the right of a Purchaser to request a Third Closing Shares shall terminateoccur via “Delivery Versus Payment” (“DVP”) (i.e., and the Company shall be under no obligation to sell and issue any further Securities to the Purchasers. (b) On or prior to on the Third Closing Date, the Company shall deliver or cause to be delivered to issue the Applicable Third Closing Shares registered in each Purchaser the following: (i) the Company shall have provided each Purchaser with the CompanyPurchaser’s wire instructions; (ii) a copy of the irrevocable instructions to name and address and released by the Transfer Agent instructing the Transfer Agent to establish via the direct registration system a book-entry notation for that number of Shares equal to such Purchaser’s Third Closing Subscription Amount applicable directly to the Shares divided account(s) identified by the Per Share Purchase Price each Purchaser, and registered in the name of such payment therefor shall be made by each Purchaser (minus the number of shares of Common Stock issuable upon exercise of such Purchaser’s Pre-Funded Warrants, if applicable); (iii) if applicable, for each Purchaser of Pre-Funded Warrants pursuant to Section 2.1, a Pre-Funded Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to the portion of such Purchaser’s Third Closing Subscription Amount applicable to Pre-Funded Warrants divided by the Per Share Purchase Price minus $0.001, with an exercise price equal to $0.001 per share of Common Stock, subject to adjustment therein; (iv) a legal opinion of Company Counsel, directed to the Purchasers, in form and substance reasonably acceptable to the Purchasers; and (c) On or prior to the Third Closing Date, each Purchaser shall deliver or cause to be delivered to the Company such Purchaser’s Third Closing Subscription Amount by wire transfer to the account specified in writing by Company)). All Third Closing Shares shall be delivered to the CompanyPurchasers hereunder free and clear of all Liens, other than restrictions on transferability arising under applicable federal securities laws.

Third Closing. (a) If At any time after the later of occur of (i) the Company publicly announces day following the Third Closing Milestone Event and following such announcement date the average VWAP Registration Statement(s) covering the resale of the Common Stock for each of Underlying Shares issued at the immediately subsequent five (5) Trading Days is at least $0.7325 per share (as adjusted for reverse First Closing and forward stock splits, stock dividends, stock combinations the Second Closing shall become effective and other similar transactions of the Common Stock that occur after the date of this Agreement and prior to the Third Closing Date (which is 125% of the Per Share Purchase Price)) or (ii) the Company receives 120th day following the First Closing Date (the "THIRD CLOSING TRIGGER DATE"), the Borrower may, at its option, require a Third Closing to occur by delivering an irrevocable written notice from a Purchaser waiving subsection to each Lender within thirty (i30) above and desires to effect days of the Third Closing Trigger Date (as to the Subscription Amount "THIRD CLOSING NOTICE") indicating the Borrower's exercise of such waiving Purchaser only), then the Company will promptly distribute (its rights under this Section 2.2 and in any event within two (2) Trading Days of such public announcement and achievement of (i) above or receipt of such written notice pursuant to (ii) above) to each Purchaser a notice identifying the date of the Third Closing. If Company terminates , which date shall be the Niyad NEPHRO CRRT study then 10th Trading Day following the right of a Purchaser to request a Third Closing shall terminate, Notice (the "THIRD CLOSING DATE"). The purchase and sale of the Company shall be under no obligation to sell and issue any further Securities Third Closing Notes pursuant to the Purchasersterms of this Section 2.3 shall take place at the offices of Proskauer Rose LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇. (b) On or prior Subject to the terms and conditions of this Agreement, including without limitation Sections 2.3(c) and 2.5 hereof, each Lender agrees, severally and not jointly, to purchase at the Third Closing and the Borrower agrees to sell and issue to each Lender at the Third Closing, that aggregate principal amount of Notes set forth opposite such Lender's name on Schedule A hereto under the heading "Third Closing Notes" and a Warrant for the aggregate purchase price (the "THIRD CLOSING PURCHASE PRICE") set forth opposite such Lender's name on Schedule A hereto under the heading "Third Closing Purchase Price". (c) The Conversion Price for the Third Closing Notes shall be equal to 100% of the arithmetic average of the VWAP of the Borrower's Common Stock for the 10 Trading Days immediately preceding the Third Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following: (i) the Company shall have provided each Purchaser with the Company’s wire instructions; (ii) a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to establish via the direct registration system a book-entry notation for that number of Shares equal to such Purchaser’s Third Closing Subscription Amount applicable to the Shares divided by the Per Share Purchase Price and registered in the name of such Purchaser (minus the number of shares of Common Stock issuable upon exercise of such Purchaser’s Pre-Funded Warrants, if applicable); (iii) if applicable, for each Purchaser of Pre-Funded Warrants pursuant to Section 2.1, a Pre-Funded Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to the portion of such Purchaser’s Third Closing Subscription Amount applicable to Pre-Funded Warrants divided by the Per Share Purchase Price minus $0.001, with an exercise price equal to $0.001 per share of Common Stock, subject to adjustment therein; (iv) a legal opinion of Company Counsel, directed to the Purchasers, in form and substance reasonably acceptable to the Purchasers; and (c) On or prior to the Third Closing Date, each Purchaser shall deliver or cause to be delivered to the Company such Purchaser’s Third Closing Subscription Amount by wire transfer to the account specified in writing by the Company.

Third Closing. (a) If On the terms and conditions set forth in this Agreement, the closing of the Tranche 3 Purchase (the “Third Closing” and together with the First Closing and the Second Closing, the “Closings” and each, a “Closing”) shall occur at 10:00 am New York City time on the thirteenth (13th) Business Day after (or such other date and time as is mutually agreed to by the parties) the Company delivers a written notice to the Purchaser in the form attached hereto as Exhibit A stating that the Company is electing to consummate the Third Closing (which notice must be delivered on or prior to the Final Notice Date), by the electronic exchange of documents (the date on which the Third Closing occurs is referred to herein as the “Third Closing Date” and together with the First Closing Date and Second Closing Date, the “Closing Dates”). (b) At the Third Closing: (i) Subject to the Purchaser’s compliance with Section 2.04(b)(ii), the Company publicly announces shall deliver to the Purchaser the Tranche 3 Securities registered in the name of any Purchaser, free and clear of all Liens (except for any restrictions on ownership and transfer imposed by the Company Charter Documents, the Securities Act and any applicable securities Laws) and record the Purchaser as the owner of such Tranche 3 Securities on the books and records of the Company. (ii) Subject to the Company’s compliance with Section 2.04(b)(i) and the satisfaction or waiver of the conditions set forth in Section 2.04(c), the Purchaser shall pay the Tranche 3 Purchase Price to the Company, by wire transfer in immediately available U.S. federal funds, to an account designated by the Company in writing. (c) The obligation of the Purchaser to consummate the Third Closing Milestone Event and following such announcement is subject to the average VWAP satisfaction or waiver by Purchaser of the Common following conditions: (i) either (A) the Second Closing having occurred prior to the Third Closing, or (B) the Second Closing occurring concurrently with the Third Closing; (ii) the Dividends as of the most recent prior Dividend Payment Date (as such capitalized terms are defined in the Articles Supplementary) on any shares of Series B Preferred Stock for held by Purchaser are not then in arrears and the Company is not then in default under, or otherwise then in breach of, any of the Transaction Documents; (iii) after giving effect to the Third Closing and the Company’s intended use of the Tranche 3 Purchase Price, to the Knowledge of the Company, the Company is not then in default under, or then in breach of any covenants of, any of the Debt Financing Facilities or any debt financing facility of the Company entered into after the First Closing; (iv) (A) each of the immediately subsequent five (5) Trading Days is at least $0.7325 per share (Fundamental Representations shall be true and accurate in all material respects as adjusted for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date Third Closing Date as if made on and as of this Agreement and prior to the Third Closing Date (other than any such representations and warranties which is 125% by their terms are made as of the Per Share Purchase Price)) or (ii) the Company receives written notice from a Purchaser waiving subsection (i) above specific earlier date, which shall have been true and desires to effect the Third Closing (accurate in all material respects as to the Subscription Amount of such waiving Purchaser onlyearlier date), then ; (B) from the Company will promptly distribute (and in any event within two (2) Trading Days of such public announcement and achievement of (i) above or receipt of such written notice pursuant to (ii) above) to each Purchaser a notice identifying the date of the Third Closing. If Company terminates the Niyad NEPHRO CRRT study then the right of a Purchaser to request a Third Second Closing shall terminate, and the Company shall be under no obligation to sell and issue any further Securities to the Purchasers. (b) On or prior to Date through the Third Closing Date, there shall not have occurred any Material Adverse Effect; and (C) each of the other representations and warranties made by the Company in this Agreement shall deliver or cause be true and accurate in all respects as of the Third Closing Date as if made on and as of the Third Closing Date (other than any such representations and warranties which by their terms are made as of a specific earlier date, which shall have been true and accurate in all respects as of such earlier date), other than failures to be delivered to true and accurate that have not resulted in a Material Adverse Effect; provided, however, that, in the case of each Purchaser of the following: foregoing clause (i) C), for purposes of determining the Company accuracy of such representations and warranties, all materiality and similar qualifications limiting the scope of such representations and warranties shall have provided each Purchaser with the Company’s wire instructionsbe disregarded; (iiv) the Purchaser shall have received from the Company a copy certificate from a secretary or an executive officer of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to establish via the direct registration system a book-entry notation for that number Company, dated as of Shares equal to such Purchaser’s Third Closing Subscription Amount applicable to the Shares divided by the Per Share Purchase Price and registered in the name of such Purchaser (minus the number of shares of Common Stock issuable upon exercise of such Purchaser’s Pre-Funded Warrants, if applicable); (iii) if applicable, for each Purchaser of Pre-Funded Warrants pursuant to Section 2.1, a Pre-Funded Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to the portion of such Purchaser’s Third Closing Subscription Amount applicable to Pre-Funded Warrants divided by the Per Share Purchase Price minus $0.001, with an exercise price equal to $0.001 per share of Common Stock, subject to adjustment therein; (iv) a legal opinion of Company Counsel, directed to the Purchasers, in form and substance reasonably acceptable to the Purchasers; and (c) On or prior to the Third Closing Date, to the effect that each of the conditions specified in clauses (ii) through (iv) of this Section 2.04(c) has been satisfied; and (vi) the Purchaser shall deliver or cause to be delivered to have received from the Company such Purchaser’s Third Closing Subscription Amount by wire transfer to the account specified in writing by the Companya REIT Opinion and a Company Counsel Opinion.

Third Closing. (a) If Subject to the terms and conditions set forth in this Agreement, the closing of the transactions contemplated by Section 2.2(c) of this Agreement (ithe “Third Closing”) shall take place at the Company publicly announces place and on the date (the “Third Closing Milestone Event Date”) as specified by Buyer in a notice to the Selling Shareholders duly signed and delivered by Buyer as promptly as practicable following such announcement the average VWAP delivery of the Common Stock for each of the immediately subsequent 2009 Audited Financial Statements to Buyer (such Third Closing to take place within five (5) Trading Business Days is at least $0.7325 per share (as adjusted for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement and prior to the Third Closing Date (which is 125% of the Per Share Purchase Price)) or (ii) the Company receives written notice from a Purchaser waiving subsection (i) above and desires to effect the Third Closing (as to the Subscription Amount of following such waiving Purchaser only), then the Company will promptly distribute (delivery and in any event no later than May 15, 2010, unless the delivery of the 2009 Audited Financial Statements has been delayed due to a failure on the part of Key Management to timely furnish the Auditors with the management accounts required for the preparation thereof, in which case such payment shall be made within two five (25) Trading Business Days of such public announcement and achievement of (i) above or receipt of such written notice pursuant to (ii) above) to each Purchaser a notice identifying the date delivery of the Third Closing. If Company terminates the Niyad NEPHRO CRRT study then the right of a Purchaser to request a Third Closing shall terminate, and the Company shall be under no obligation to sell and issue any further Securities to the Purchasers2009 Audited Financial Statements). (b) On or Upon the occurrence of a Prospective Event of Change in Control after the Second Closing Date and before the Third Closing Date, Buyer shall notify the Sellers’ Representative within three (3) Business Days of the occurrence of such Prospective Event of Change in Control, and the Third Closing shall take place on an accelerated basis. Notwithstanding any other provision of this Agreement to the contrary, (i) the Third Closing shall take place immediately prior to the closing of such Prospective Event of Change in Control and (ii) the Third Installment Consideration shall be equal to the Base Purchase Price minus the Second Installment Consideration and the Initial Cash Consideration, and payable in cash. (c) Upon the occurrence of a Key Management Dismissal Event after the Second Closing Date and before the Third Closing Date, the Third Closing shall take place on an accelerated basis. Notwithstanding any other provision of this Agreement to the contrary, (i) the Third Closing shall take place within seven (7) Business Days of the occurrence of the Key Management Dismissal Event, (ii) the Third Installment Share Consideration shall be equal to US$68,906,250 divided by the Average FM Share Price and (iii) the Additional Share Consideration shall be equal to US$350,000,000 minus the Initial Cash Consideration, the Second Installment Consideration and US$68,906,250, divided by the Average FM Share Price. (d) The Sellers’ Representative shall deliver the Third Installment Allocation Schedule to Buyer no later than five (5) Business Days prior to the Third Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following:. (ie) the Company shall have provided each Purchaser with the Company’s wire instructions; (ii) a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to establish via the direct registration system a book-entry notation for that number of Shares equal to such Purchaser’s Third Closing Subscription Amount applicable to the Shares divided by the Per Share Purchase Price and registered in the name of such Purchaser (minus the number of shares of Common Stock issuable upon exercise of such Purchaser’s Pre-Funded Warrants, if applicable); (iii) if applicable, for each Purchaser of Pre-Funded Warrants pursuant to Section 2.1, a Pre-Funded Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to the portion of such Purchaser’s Third Closing Subscription Amount applicable to Pre-Funded Warrants divided by the Per Share Purchase Price minus $0.001, with an exercise price equal to $0.001 per share of Common Stock, subject to adjustment therein; (iv) a legal opinion of Company Counsel, directed to the Purchasers, in form and substance reasonably acceptable to the Purchasers; and (c) On At or prior to the Third Closing DateClosing, each Purchaser Buyer shall deliver or cause to be delivered to the Company such Purchaser’s Third Closing Subscription Amount by wire Sellers’ Representative for the benefit of the Selling Shareholders and the Option Holders true copies of the register of members of Buyer indicating the transfer to the account specified Selling Shareholders and the Option Holders and registration in writing by the Companyname of the Selling Shareholders and the Option Holders in respect of the Third Installment Share Consideration, if any, and the Additional Share Consideration, if any, as set forth opposite their respective names in the Third Installment Allocation Schedule.

Third Closing. (A) Subject to the terms and conditions set forth in Section 4.2 and elsewhere in this Agreement, during the time specified below the Company shall deliver a written notice to the Purchasers (a "Third Closing Notice") requiring the Purchasers to purchase an additional 367.50 shares of Preferred Stock (the "Third Tranche Preferred Stock" and together with the Second Tranche Preferred Stock, the "Additional Preferred Stock") for an aggregate purchase price of $735,000 (the "Third Tranche Purchase Price"). The Company shall deliver a Third Closing Notice no earlier than 60 days after the date on which the initial Registration Statement filed with the Commission with respect to the Preferred Stock has been declared effective by the Commission and no later than 90 days after such effective date. At the Third Closing each Purchaser shall be obligated (subject to the terms and conditions herein) to purchase such portion of the Third Tranche Preferred Stock sold by the Company as set forth opposite such Purchaser's name on Schedule 1 at the purchase prices set forth on Schedule 1. The closing of the purchase and sale of the Third Tranche Preferred Stock (the "Third Closing") shall take place in the same manner as the Initial Closing, on such date indicated in the Third Closing Notice (which may not be prior to the 10th day after receipt by the Purchasers of the Third Closing Notice or as otherwise agreed to by the parties); provided, however, that in no case shall the Third Closing take place unless and until the conditions listed in Section 4.2 have been satisfied or waived by the appropriate party. The date of the Third Closing is hereinafter referred to as the "Third Closing Date.") (B) At the Third Closing (a) If (i) the Company publicly announces shall deliver to each Purchaser (1) stock certificates representing the shares of Preferred Stock (the "Third Closing Milestone Event Tranche Shares" and following together with the Initial Shares and the Second Tranche Shares, the "Shares") purchased by such announcement Purchaser as set forth next to such Purchaser's name on Schedule 1 attached hereto, each registered in the average VWAP name of the Common Stock for each of the immediately subsequent five such Purchaser and (52) Trading Days is all other documents, instruments and writings required to have been delivered at least $0.7325 per share (as adjusted for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement and or prior to the Third Closing Date by the Company pursuant to this Agreement and the Registration Rights Agreement, and (which is 125% of b) each Purchaser shall deliver to the Per Share Purchase Price)) or Company (ii1) the Company receives written notice from a Purchaser waiving subsection (i) above and desires to effect the Third Closing (as to the Subscription Amount of such waiving Purchaser only), then the Company will promptly distribute (and in any event within two (2) Trading Days of such public announcement and achievement of (i) above or receipt of such written notice pursuant to (ii) above) to each Purchaser a notice identifying the date portion of the Third Closing. If Company terminates the Niyad NEPHRO CRRT study then the right of a Purchaser Tranche Purchase Price set forth next to request a Third Closing shall terminateits name on Schedule 1, and in United States dollars in immediately available funds by wire transfer to an account designated in writing by the Company shall be under no obligation to sell and issue any further Securities to the Purchasers. (b) On for such purpose on or prior to the Third Closing Date, the Company shall deliver or cause and (2) all documents, instruments and writings required to be have been delivered to each Purchaser the following: (i) the Company shall have provided each Purchaser with the Company’s wire instructions; (ii) a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to establish via the direct registration system a book-entry notation for that number of Shares equal to such Purchaser’s Third Closing Subscription Amount applicable to the Shares divided by the Per Share Purchase Price and registered in the name of such Purchaser (minus the number of shares of Common Stock issuable upon exercise of such Purchaser’s Pre-Funded Warrants, if applicable); (iii) if applicable, for each Purchaser of Pre-Funded Warrants pursuant to Section 2.1, a Pre-Funded Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to the portion of such Purchaser’s Third Closing Subscription Amount applicable to Pre-Funded Warrants divided by the Per Share Purchase Price minus $0.001, with an exercise price equal to $0.001 per share of Common Stock, subject to adjustment therein; (iv) a legal opinion of Company Counsel, directed to the Purchasers, in form and substance reasonably acceptable to the Purchasers; and (c) On at or prior to the Third Closing Date, each by such Purchaser shall deliver or cause pursuant to be delivered to this Agreement and the Company such Purchaser’s Registration Rights Agreement. The Second Closing and the Third Closing Subscription Amount by wire transfer are hereinafter collectively referred to as the account specified in writing by "Subsequent Closings," and the CompanySecond Closing Date and the Third Closing Date are hereinafter referred to as the "Subsequent Closing Dates."

Third Closing. Subject to the terms and conditions set forth in Section 4.3 and elsewhere in this Agreement, the Purchasers shall have the right (athe "Purchasers' Call Option") If at any time within a two (i2) year period commencing on the First Closing Date to deliver a written notice to the Company (a "Purchasers' Call Option Notice") requiring the Company to issue and sell on the same terms and conditions as at the First Closing, except that the Conversion Price shall be equal to the lesser of (x) $5.50 per share of Common Stock and (y) the Company publicly announces the Third Closing Milestone Event and following such announcement the five (5) day average VWAP closing bid price of the Common Stock (as reported by Bloomberg Information Services, Inc., or any successor reporting service) for each of the immediately subsequent five (5) Trading Days is at least $0.7325 per share (as adjusted for reverse defined below) immediately preceding the Second Closing Date, but in any event no lower than the Conversion Price at the First Closing, (1) an additional principal amount of Debentures of up to $3,000,000 and forward stock splits, stock dividends, stock combinations and other similar transactions (2) an additional Warrant with an Exercise Price equal to 115% of the Common Stock Conversion Price at the Third Closing. The closing of the purchase and sale of the additional Debentures and Warrant(s) (the "Third Closing") under the Purchasers' Call Option Notice shall take place in the same manner as the First Closing, within five (5) business days of the date after delivery of the Purchasers' Call Option Notice (the "Third Closing Date"); provided, that occur in no case shall the Third Closing take place unless and until the conditions listed in Section 4.3 have been satisfied or waived by the appropriate party, and provided, further that, if the Company has filed a registration statement under the Securities Act relating to an Underwritten Offering (as defined in the Registration Rights Agreement) and if the Company, after consultation with the managing underwriter(s) or underwriter(s), should reasonably determine that the Third Closing would materially adversely affect the offering contemplated in such registration statement, then the Third Closing shall be delayed until sixty (60) days after the date closing of this Agreement and such offering or until after the cancellation of such offering. If a Change of Control shall have occurred prior to the Third Closing Date (which is 125% of the Per Share Purchase Price)) or (ii) the Company receives written notice from a Purchaser waiving subsection (i) above and desires to effect the Third Closing (as to the Subscription Amount of such waiving Purchaser only)Second Closing, then the Company will promptly distribute shall not be obligated to sell more than one-half (and in any event within two (2$1,500,000 aggregate principal amount of Debentures) Trading Days of such public announcement and achievement of (i) above or receipt of such written notice pursuant to (ii) above) to each Purchaser a notice identifying the date of the Third amount of Debentures and Warrants described above; provided, that if the Change of Control occurs after the Second Closing. If Company terminates the Niyad NEPHRO CRRT study then the right of a Purchaser to request a Third Closing shall terminate, and the Company shall be under no obligation required to sell the full amount ($3,000,000 aggregate principal amount of Debentures) of Debentures and issue any further Securities to the Purchasers. (b) On or prior to Warrants described above. At the Third Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the followingClosing: (i) the Company Each Purchaser shall have provided each Purchaser with deliver, as directed by the Company’s wire instructions, its portion of the purchase price as set forth next to its name on a schedule similar to Schedule I (the "Third Closing Schedule"), to be attached to the Purchasers' Call Option Notice, in United States dollars in immediately available funds to an account or accounts designated in writing by the Company; (ii) The Company shall deliver a copy Debenture, substantially in the form of Exhibit A hereto, except that Section 4.2(b) thereof shall be omitted, with a Conversion Price equal to the lesser of (A) $5.50 per share of Common Stock and (B) the five (5) day average closing bid price of the irrevocable instructions to Common Stock (as reported by Bloomberg Information Services, Inc., or any successor reporting service) for the Transfer Agent instructing five (5) Trading Days immediately preceding the Transfer Agent to establish via Second Closing Date (provided, that in no event shall such Conversion Price be lower than the direct registration system a book-entry notation for that number of Shares equal Conversion Price at the First Closing), representing the principal amount purchased by each Purchaser as set forth next to such Purchaser’s 's name on the Third Closing Subscription Amount applicable to the Shares divided by the Per Share Purchase Price and Schedule, registered in the name of such Purchaser (minus the number of shares of Common Stock issuable upon exercise of such Purchaser’s Pre-Funded Warrants, if applicable); (iii) if applicableThe Company shall deliver a Warrant(s), for substantially in the form of Exhibit B hereto and with an Exercise Price equal to 115% of the Conversion Price at the Third Closing, representing the Warrant(s) being purchased by each Purchaser of Pre-Funded Warrants pursuant as set forth next to Section 2.1such Purchaser's name on the Third Closing Schedule, a Pre-Funded Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to the portion of such Purchaser’s Third Closing Subscription Amount applicable to Pre-Funded Warrants divided by the Per Share Purchase Price minus $0.001, with an exercise price equal to $0.001 per share of Common Stock, subject to adjustment therein;; and (iv) a legal opinion The parties shall execute and deliver each of Company Counsel, directed the documents referred to the Purchasers, in form and substance reasonably acceptable to the Purchasers; and (c) On or prior to the Third Closing Date, each Purchaser shall deliver or cause to be delivered to the Company such Purchaser’s Third Closing Subscription Amount by wire transfer to the account specified in writing by the CompanySection 4.3.

Third Closing. (a) If (i) the Company publicly announces the Third Closing Milestone Event and following such announcement the average VWAP The obligation of the Common Stock for each of the immediately subsequent five (5) Trading Days is at least $0.7325 per share (as adjusted for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement and prior to the Third Closing Date (which is 125% of the Per Share Purchase Price)) or (ii) the Company receives written notice from a Purchaser waiving subsection (i) above and desires C Investors to effect the Third Closing (as is subject to the Subscription Amount satisfaction or waiver in writing by the holders of such waiving Purchaser only), then the Company will promptly distribute (and in any event within C Shares holding at least two (2) Trading Days of such public announcement and achievement of (i) above or receipt of such written notice pursuant to (ii) above) to each Purchaser a notice identifying the date thirds of the Third Closing. If Company terminates C Shares of the Niyad NEPHRO CRRT study then the right of a Purchaser to request a Third Closing shall terminate, and the Company shall be under no obligation to sell and issue any further Securities to the Purchasers. (b) On or prior to the Third Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the followingfollowing conditions: (i) the Company shall have provided each Purchaser to the C Investors minutes from Company meetings with the Company’s wire instructions;FDA (end of Phase II or Pre-IND meeting) and with the EMA (scientific advice or protocol assistance meeting) that document the size and scope of the next clinical trial for AM-111; Series C Investment Agreement Execution Version Auris Medical AG (ii) a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to establish via the direct registration system a book-entry notation for that number of Shares equal to such Purchaser’s Third Closing Subscription Amount applicable to the Shares divided either Sofinnova Ventures or Sofinnova Partners shall have confirmed within 30 days after notification by the Per Share Purchase Price and registered in Company that the name of minutes as per condition (i) here above are acceptable to it (such Purchaser (minus the number of shares of Common Stock issuable upon exercise of such Purchaser’s Pre-Funded Warrants, if applicableconfirmation not to be unduly refused or withheld); (iii) if applicable, for each Purchaser the Company shall have restated the representations and warranties on the date of Pre-Funded Warrants the Third Closing pursuant to Section 2.1Clause 3 with, a Pre-Funded Warrant registered in as the name of such Purchaser to purchase up to a number of shares of Common Stock equal case may be, appropriate disclosures acceptable to the portion of such Purchaser’s Third Closing Subscription Amount applicable to Pre-Funded Warrants divided by the Per Share Purchase Price minus $0.001, with an exercise price equal to $0.001 per share of Common Stock, subject to adjustment therein;C Investors; and (iv) a legal opinion no Material Adverse Change since the Second Closing or Initial Closing, whichever is most recent, shall have occurred ((i) to (iv) altogether the “Third Closing Conditions”). Within 10 days as from receipt by the Company of Company Counselconfirmation by Sofinnova Ventures and/or Sofinnova Partners as per condition precedent (ii) here above, directed and subject to satisfaction of the remaining Third Closing Conditions, the Third Closing shall take place as follows: (a) the C Investors shall deliver to the PurchasersBoard their respective commitments substantially in the form set forth in Annex IV and shall have transferred their cash contributions to arrive in a blocked escrow bank account with UBS Basle for the nominal value of the shares (CHF 10 per Share) and in bank account no. xxx-xxxxxxxxx.x (xxxx xxxx xxxx xxxx xxxx xxxx) with UBS Berne (BIC: xxxxxxxxxxx) or any other account designated by the Company for the relevant Agio Amount for each subscribed C Share as per Annex II, Column Third Closing; (b) the Board shall resolve on the increase in form capital out of the authorized capital voted at the Initial Closing and substance reasonably acceptable issue up to 67,227 new C Shares to the Purchasers; andC Investors as set forth in Annex II, Column Third Closing; (c) On or in case of participation of a Qualified Investor, the Parties shall furthermore resolve on the increase in capital [either prior to the Third Closing Date, each Purchaser by way of creation of a new authorised share capital or at the Third Closing by way of an ordinary increase of the share capital] and the Board shall deliver or cause to be delivered issue the corresponding number new Series C Shares to the Qualified Investor; (d) the Company such Purchaser’s Third Closing Subscription Amount by wire transfer to shall file the account specified application with the Register of Commerce of the Canton of Basel-Stadt immediately upon receipt of the necessary documents and resolutions, and proceed with the actions set forth in writing by the Companyclause 2.5.

Third Closing. (a) If Prior to the commencement of the Phase 0 study (i) as defined in the Updated R&D Budget), the Company publicly announces shall require the prior written approval of Purchaser to the location and protocol of such Phase 0 Study, which approval shall be in Purchaser’s sole discretion. Upon completion of such Phase 0 study, the Company shall deliver written notice to the Purchaser (“Company Notice”), along with a report summarizing the results of the Phase 0 study pursuant to the terms of the RELO Agreement. (b) Within forty-five (45) days of receiving the Company Notice, the Purchaser may deliver to the Company, at its sole discretion, a written notice (the “Third Closing Notice”) that that Purchaser elects to proceed with the R&D Program and pursue the filing of an IND (as defined in the RELO Agreement). If the Purchaser does not deliver the Third Closing Milestone Event and following such announcement Notice, then the average VWAP of parties hereto shall have no further rights or obligations under this Section 2.4 hereof. (c) If the Common Stock for each of the immediately subsequent five (5) Trading Days is at least $0.7325 per share (as adjusted for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement and prior to Purchaser delivers the Third Closing Date (which is 125% of the Per Share Purchase Price)) or (ii) the Company receives written notice from a Purchaser waiving subsection (i) above and desires to effect the Third Closing (as to the Subscription Amount of such waiving Purchaser only)Notice, then the Company and the Purchaser will promptly distribute (and in any event proceed to the Third Closing, which will occur within two (2) Trading Days of such public announcement and achievement of (i) above or 15 days following the receipt of the Third Closing Notice at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇-▇▇▇▇, or at such written notice pursuant to other place as may be mutually agreed upon between the parties hereto, on such date and time as shall be mutually agreed upon between the parties hereto (ii) above) to each Purchaser a notice identifying the “Third Closing” and the date of the Third Closing. If Company terminates , the Niyad NEPHRO CRRT study then the right of a Purchaser to request a “Third Closing shall terminate, and the Company shall be under no obligation to sell and issue any further Securities to the PurchasersDate”). (bd) On or prior It shall be a condition to the obligation of the Company and the Purchaser to consummate the Third Closing Datethat the NYSE Amex shall have approved the Third Closing Shares for listing on the NYSE Amex. (e) At the Third Closing the following transactions shall take place, the Company all of which shall deliver or cause be deemed to be delivered to each Purchaser the followinghave occurred simultaneously: (i) the The Company shall have provided each sell and issue to the Purchaser, and the Purchaser with shall purchase from the Company’s wire instructions; (ii) a copy of , the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to establish via the direct registration system a book-entry notation for that number of Shares equal to such Purchaser’s Third Closing Subscription Amount applicable to the Shares divided by the Per Share Purchase Price and registered in the name of such Purchaser (minus the number of shares of Common Stock issuable upon exercise of such Purchaser’s Pre-Funded Warrants, if applicable); (iii) if applicable, for each Purchaser of Pre-Funded Warrants pursuant to Section 2.1, a Pre-Funded Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to the portion quotient of such Purchaser’s (i) $750,000 divided by (ii) the per share price that is equal to 120% of the closing price of the Common Stock on the primary Trading Market on which the Common Stock is then trading as reported by Bloomberg L.P. for the last trading day preceding the Third Closing Subscription Amount applicable Date (the “Third Closing Shares”). (ii) The Purchaser shall transfer to Pre-Funded Warrants divided the Company the amount of $750,000 by wire transfer of immediately available funds to the Per Share Purchase Price minus $0.001account of the Company (“Third Closing Payment”). (iii) If Third Closing Shares are being issued, with an exercise price equal the Company shall deliver to $0.001 per share the Purchaser a stock certificate, free and clear of Common Stockall restrictive legends (except as expressly provided in Section 5.1(a)), subject to adjustment therein;evidencing the Third Closing Shares, registered in the name of the Purchaser. (iv) The Purchaser shall provide the Company with a legal opinion of Company Counsel, directed to the Purchaserscompliance certificate, in form and substance reasonably acceptable satisfactory to the Purchasers; and (c) On or prior to Company, certifying the accuracy of the Purchaser’s representations and warranties in the Agreement as of the Third Closing Date, each Purchaser shall deliver or cause to be delivered to the Company such Purchaser’s Third Closing Subscription Amount by wire transfer to the account specified in writing by the Company.”

Third Closing. (a) If (i) the Company publicly announces the Third Closing Milestone Event and following such announcement the average VWAP No later than ninety (90) days of the COD, the Buyer shall consummate a financing with a third party and have filed a registration statement on Form S-1, or such other appropriate form (the “Registration Statement”), with the United States Securities and Exchange Commission (“SEC”) therein registering an amount of Common Stock of Pan Global sufficient for each of the immediately subsequent five (5) Trading Days is at least $0.7325 per share (financing; and shall use its best efforts to have the Registration Statement declared effective by the SEC as adjusted for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement and prior to the Third Closing Date (which is 125% of the Per Share Purchase Price)) or (ii) the Company receives written notice from a Purchaser waiving subsection (i) above and desires to effect the Third Closing (soon as to the Subscription Amount of such waiving Purchaser only), then the Company will promptly distribute (and in any event within two (2) Trading Days of such public announcement and achievement of (i) above or receipt of such written notice pursuant to (ii) above) to each Purchaser a notice identifying the date of the Third Closing. If Company terminates the Niyad NEPHRO CRRT study then the right of a Purchaser to request a Third Closing shall terminate, and the Company shall be under no obligation to sell and issue any further Securities to the Purchaserspossible. (b) On or prior to the Third Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following: (i) the Company shall have provided each Purchaser with the Company’s wire instructions; (ii) a copy No later than thirty (30) days after the date the SEC declares the Registration Statement to be effective under the Securities Act, the Buyer shall commence purchasing for an aggregate purchase price of Rs. 247,500,000 (adjusted up or down for the difference between Rs 38.75 Cr. and the Rupee value of prior payments calculated on the day of each prior payment): (A) the remaining outstanding Shares (the “Remaining Shares”) from the Selling Stockholders and cash repurchase of the irrevocable instructions Pan Global Preferred Stock exchanged in the Second Closing for the purchase price of the Promoter Shares and any other liabilities other than the SBOP term loan or the indebtedness listed in Exhibit E; and either (B) the indebtedness of the Promoter and his associates listed on Exhibit E (listed therein as Unsecured Loans in the amounts of Rs. 55,572,337 and Rs. 13,109,000 (the “Indebtedness”)) attached hereto pursuant to a purchase agreement agreed to by the Transfer Agent instructing Company and the Transfer Agent to establish via the direct registration system a book-entry notation for that number of Shares equal to such Purchaser’s Third Closing Subscription Amount applicable to Promoter and other Unsecured Creditors; or (C) the Shares divided by issued upon the Per Share Purchase Price conversion of the Promoter’s debt and registered in the name of such Purchaser (minus the number of shares of Common Stock issuable upon exercise of such Purchaser’s Pre-Funded Warrants, if applicable);other Unsecured Creditors, (iii) if applicableThe Buyer shall have ninety (90) days to fully consummate the Third Closing, for each Purchaser of Pre-Funded Warrants pursuant to Section 2.1, a Pre-Funded Warrant registered resulting in the name Buyer owning 100% of such Purchaser to purchase up to a number the outstanding equity of shares the Company and R▇▇▇ having no debt other than the SBOP term loan of Common Stock equal to the portion of such Purchaser’s Third Closing Subscription Amount applicable to Pre-Funded Warrants divided by the Per Share Purchase Price minus $0.001, with an exercise price equal to $0.001 per share of Common StockRs. 28.36 Cr., subject to adjustment therein; the Buyer’s option to extend such ninety (iv90) a legal opinion of Company Counsel, directed day period by up to an additional ninety (90) days in its sole discretion (the Purchasers, in form and substance reasonably acceptable to the Purchasers; and (c) On or prior to the Third Closing “Drop Dead Date, each Purchaser shall deliver or cause to be delivered to the Company such Purchaser’s Third Closing Subscription Amount by wire transfer to the account specified in writing by the Company”).

Third Closing. Upon the terms and subject to the conditions set forth in this Agreement, the third closing (a) If (i) the Company publicly announces the Third Closing Milestone Event and following such announcement the average VWAP of the Common Stock for each of the immediately subsequent ) shall take place within five (5) Trading Days is at least $0.7325 per share (as adjusted for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions days following the Milestone Target Payment Date applicable to Milestone 2 upon the satisfaction of the Common Stock that occur after the date of this Agreement conditions set forth in Section 5.2 and prior Section 6.2 applicable to the Third Closing Date (which is 125% of or such other time and place as the Per Share Purchase Price)Parties may agree) or (ii) the Company receives written notice from a Purchaser waiving subsection (i) above and desires to effect the Third Closing (as to the Subscription Amount of such waiving Purchaser onlyDate ), then the Company will promptly distribute (and in any event within two (2) Trading Days of such public announcement and achievement of (i) above or receipt of such written notice pursuant to (ii) above) to each Purchaser a notice identifying the date of . At the Third Closing. If , the following shall occur: (a) in the event the Purchaser elects to purchase Series B Preferred at the Third Closing, the Purchaser shall deliver to the Company terminates an amount in U.S. Dollars in immediately available funds that is not greater than the Niyad NEPHRO CRRT study then Maximum Total Series B Investment (such actual amount being the right of a Purchaser to request a Third Closing Payment ), and, in exchange therefor, the Company shall terminateissue and sell to the Purchaser, and the Company Purchaser shall be under no obligation accept (subject to sell and issue any further Securities Section 1.9), a number of shares of Series B-2 Preferred equal to (x) the Purchasers.Third Closing Payment divided by (y) the Series B-2 Purchase Price (as defined in the Series B Certificate of Designations); (b) On or prior in the event the Purchaser elects to pay to the Company the Third Closing DatePayment specified above, the Company shall execute and deliver or cause to be delivered to each Purchaser the following: (i) the Company shall have provided each Purchaser with the Company’s wire instructions; (ii) a copy Warrant in favor of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to establish via the direct registration system a book-entry notation for that number of Shares equal to Purchaser, convertible into such Purchaser’s Third Closing Subscription Amount applicable to the Shares divided by the Per Share Purchase Price and registered in the name of such Purchaser (minus the number of shares of Common Stock issuable upon exercise of such Purchaser’s Pre-Funded Warrants, if applicable); (iii) if applicable, for each Purchaser of Pre-Funded Warrants pursuant to Section 2.1, a Pre-Funded Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to 25% of the portion number of shares of Common Stock into which the Series B-2 Preferred purchased pursuant to Section 1.3(a) above are convertible on the date of issuance of the Series B-2 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 Third Closing, the Company shall issue to the Purchaser, and the Purchaser may choose to accept (at its sole discretion, subject to Section 1.8 and Section 1.9), such Purchaser’s number of shares of Series A-2 Preferred that equal, when combined with such number of the Series B-2 Preferred and Warrants, if any, purchased by the Purchaser at the Third Closing Subscription Amount applicable with the Minimum Series B Investment, a 3% Ownership Interest. For purposes of clarity, in the event that the Purchaser elects to Pre-Funded invest more than the Minimum Series B Investment at the Third Closing, only such number of Series B-2 Preferred and Warrants divided as would have been purchased with the Minimum Series B Investment shall be counted in determining the 3% Ownership Interest. Notwithstanding the foregoing, the Company shall issue to the Purchaser a number of shares of Series A-2 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 3% Ownership Interest at the Third Closing (but in no event shall Purchaser acquire greater than a 10% Ownership Interest at the Third 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 Excess Series B Investment paid by the Per Share Purchase Price minus $0.001Purchaser at the prior Closings) at the Third 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-2 Preferred equal to a 1.5% Ownership Interest, and (ii) a number of shares of Series A-2 Preferred with an exercise price a Series A Liquidation Value equal to $0.001 per share of Common Stock625,000, subject but in no event to adjustment thereinexceed a maximum 2% Ownership Interest; (ivd) a legal opinion the Company shall deliver an Opinion of Company Counsel, directed Counsel applicable to the Purchasers, in form Third Closing; (e) updated Schedules to this Agreement (which update of the representations and substance reasonably acceptable 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 PurchasersPurchaser a certificate certifying that the conditions specified in Section 5.2(a) and Section 5.2(b) applicable to the Third 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 Third Closing and including any Deferred Securities under Section 1.8 and Excess Shares under Section 1.9); and (ch) On or prior to the Third Closing Date, each Company and the Purchaser shall execute and deliver any other documents and agreements necessary or cause desirable to be delivered to accomplish the Company such Purchaser’s Third Closing Subscription Amount by wire transfer to the account specified in writing by the Companyforegoing.

Third Closing. The third closing (the “Third Closing”) shall take place at the offices of the Purchaser on the fourteenth business day following the satisfaction or waiver of the conditions set forth in this section 4.3. (a) If (i) The obligation of the Company publicly announces Purchaser to consummate the Third Closing Milestone Event and following such announcement is subject to the average VWAP fulfillment or waiver by the Purchaser of the Common Stock for each of the immediately subsequent five (5) Trading Days is at least $0.7325 per share (as adjusted for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement and prior to the Third Closing Date (which is 125% of the Per Share Purchase Price)) or (ii) the Company receives written notice from a Purchaser waiving subsection (i) above and desires to effect the Third Closing (as to the Subscription Amount of such waiving Purchaser only), then the Company will promptly distribute (and in any event within two (2) Trading Days of such public announcement and achievement of (i) above or receipt of such written notice pursuant to (ii) above) to each Purchaser a notice identifying following conditions on the date of the Third Closing. If Company terminates : (i) on or before December 14, 2010, the Niyad NEPHRO CRRT study then Second Condition Precedent was completed; (ii) all the right Company’s representations and warranties in this agreement were true and correct on the date of a Purchaser to request a this agreement, the Company’s representations and warranties in this agreement shall be true and correct in all material respects at the Third Closing as if made again at and as of that time save for any matter incorrect because of subsequent action by the Purchaser since First Closing; (iii) the Company and the Shareholders shall terminatehave performed and carried out all the covenants and other provisions in this agreement, required to have been performed and carried out by it prior to the Third Closing (except that breach thereof which is not material breach shall not prevent the performance of the Third Closing); (iv) there shall not be in effect any injunction or restraining order issued by a court of competent jurisdiction in any action or proceeding against the consummation of the transactions contemplated by this agreement; and (v) the Company shall be under no obligation to sell and issue any further Securities have delivered to the PurchasersPurchaser a certificate of an executive officer or certificate signed by the Permitted Transferees or their officers, as the case maybe, confirming that the conditions specified in clauses (ii) through (v) above have been fulfilled. (b) On At the Third Closing, the Purchaser shall issue to the Company or its Permitted Transferees the Second Debenture. (c) The obligations to consummate the Third Closing may be terminated at any time prior to the Third Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following: Closing: (i) by a written agreement between the Company shall have provided each Purchaser with or its Permitted Transferees and the Company’s wire instructions; Purchaser; or (ii) a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to establish via the direct registration system a book-entry notation for that number of Shares equal to such Purchaser’s Third Closing Subscription Amount applicable to the Shares divided by the Per Share Purchase Price and registered in the name of such Purchaser (minus the number of shares of Common Stock issuable upon exercise of such Purchaser’s Pre-Funded Warrants, if applicable); (iii) if applicable, for each Purchaser of Pre-Funded Warrants pursuant to Section 2.1, a Pre-Funded Warrant registered any condition specified in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to the portion of such Purchaser’s Third Closing Subscription Amount applicable to Pre-Funded Warrants divided by the Per Share Purchase Price minus $0.001, with an exercise price equal to $0.001 per share of Common Stock, subject to adjustment therein; (iv) a legal opinion of Company Counsel, directed to the Purchasers, in form and substance reasonably acceptable to the Purchasers; and (c) On section 4.3 shall not have been satisfied or prior to the Third Closing Date, each Purchaser shall deliver or cause to be delivered to the Company such Purchaser’s Third Closing Subscription Amount by wire transfer to the account specified waived in writing by the CompanyPurchaser on or before December 14, 2010.