Common use of Third Tranche Clause in Contracts

Third Tranche. If, within one hundred eighty (180) calendar days after the date of this Agreement (the “Third Tranche Condition Period”), (i) an Event of Default (as defined in the Note) has not occurred under the Note, (ii) no event has occurred that, with the passage of time, would be an Event of Default (as defined in the Note) under the Note, (iii) the Common Stock is listed for trading on the Nasdaq Capital Market, (iv) the Company is in compliance with all of the listing standards of Nasdaq Capital Market, (v) the Company has not received any delisting or deficiency notice from Nasdaq Capital Market that remains uncured (for the avoidance of doubt, any cure period or grace period granted by Nasdaq shall be irrelevant for purposes of satisfying this condition since the deficiency must be fully cured), (vi) a registration statement under the 1933 Act covering the Holder’s resale at prevailing market prices of all of the June 2024 Securities issued and to be issued in connection with the Transaction Documents, Third Tranche Transaction Documents, and Third Tranche Transaction Documents shall have been declared effective by the SEC and remains effective, (vii) the Common Stock shall not have traded at a price per share of less than the then applicable Floor Price (as defined in the Note) for a period of fifteen (15) consecutive calendar days after the date of this Agreement, (viii) the Company has not breached any covenant, agreement, or other term or condition contained in the Transaction Documents, and (ix) the Second Tranche closed pursuant to the terms of Section 8(t) of this Agreement (all of the aforementioned conditions in (i) through (ix) of this sentence are referred to herein as the “Third Tranche Funding Conditions”), then, at the Company’s option, which may be exercised by giving written notice to the Buyer within the Third Tranche Condition Period so long the Third Tranche Funding Conditions are satisfied (the “Third Tranche Funding Notice”), the Buyer shall fund the third tranche purchase price amount specified on the Buyer’s signature page hereto (the “Third Tranche) under the same terms and conditions as the Transaction Documents (the “Third Tranche Transaction Documents”) within seven (7) calendar days after the Buyer’s receipt of the Third Tranche Funding Notice (the “Third Tranche Funding Period”). For the avoidance of doubt, the Third Tranche Funding Conditions must continue to be satisfied during the Third Tranche Funding Period. The closing of the Third Tranche shall remain subject to the satisfaction of all of the other closing conditions and deliverables contained in each of the Third Tranche Transaction Documents to be delivered to the Buyer with respect to the Third Tranche. Accordingly, and for the avoidance of doubt, the Company must provide signed copies of all of the applicable Third Tranche Transaction Documents with respect to the Third Tranche and all other closing deliverables within the Third Tranche Funding Period as a condition of closing of the Third Tranche. For the avoidance of doubt, the Third Tranche is part of the June 2024 Offering.

Third Tranche. If, within one hundred eighty (180) calendar days At any time on or after the date Closing Date but prior to the earlier to occur of this Agreement (x) March 31, 2024 and (y) the “Third Tranche Condition Period”), termination of all unused Note Purchase Commitments and payment in full of all Obligations (i) an Event of Default (as defined in the Note) other than contingent indemnification obligations for which no claim has not occurred under the Note, (ii) no event has occurred that, with the passage of time, would be an Event of Default (as defined in the Notebeen asserted) under the Note, (iii) the Common Stock is listed for trading on the Nasdaq Capital Market, (iv) the Company is in compliance with all of the listing standards of Nasdaq Capital Market, (v) the Company has not received any delisting or deficiency notice from Nasdaq Capital Market that remains uncured (for the avoidance of doubt, any cure period or grace period granted by Nasdaq shall be irrelevant for purposes of satisfying this condition since the deficiency must be fully cured), (vi) a registration statement under the 1933 Act covering the Holder’s resale at prevailing market prices of all of the June 2024 Securities issued and to be issued in connection with the Transaction Note Documents, Third Tranche Transaction Documents, and Third Tranche Transaction Documents shall have been declared effective by the SEC and remains effective, (vii) the Common Stock shall not have traded at a price per share of less than the then applicable Floor Price (as defined in the Note) for a period of fifteen (15) consecutive calendar days after the date of this Agreement, (viii) the Company has not breached any covenant, agreement, or other term or condition contained in the Transaction Documents, and (ix) the Second Tranche closed pursuant subject to the terms written approval of Section 8(t) of this Agreement (all of Athyrium, the aforementioned conditions in (i) through (ix) of this sentence are referred to herein as the “Third Tranche Funding Conditions”), then, at the Company’s option, which Issuer may be exercised by giving written notice to the Buyer within institute the Third Tranche Condition Period so long in an aggregate amount not to exceed ONE HUNDRED MILLION DOLLARS ($100,000,000); provided, that: (a) the Third Tranche Funding Conditions are satisfied (Issuer shall have obtained commitments for the “Third Tranche Funding Notice”), the Buyer shall fund the third tranche purchase price amount specified on the Buyer’s signature page hereto (the “Third Tranche) under the same terms and conditions as the Transaction Documents (the “Third Tranche Transaction Documents”) within seven (7) calendar days after the Buyer’s receipt of the Third Tranche Funding Notice from existing Purchasers or other Persons reasonably acceptable to Athyrium, which Purchasers shall join in this Agreement pursuant to such agreements as are reasonably acceptable to Athyrium; (b) the “Third Tranche Funding Period”). For the avoidance of doubt, the Third Tranche Funding Conditions must continue to be satisfied during the Third Tranche Funding Period. The closing institution of the Third Tranche shall remain subject be in a minimum aggregate principal amount of $[***] and integral multiples of $[***] in excess thereof; (i) no Default or Event of Default shall exist and be continuing at the time of such institution, (ii) the use of proceeds for the Third Tranche shall be in accordance with Section 7.11 and (iii) the conditions precedent set forth in Section 5.02 shall have been satisfied prior to or contemporaneously with the satisfaction of all of the other closing conditions and deliverables contained in each purchase of the Third Tranche Transaction Documents to be delivered to Notes; (d) (i) the Buyer with respect to the Third Tranche. Accordingly, and for the avoidance of doubt, the Company must provide signed copies of all of the applicable Third Tranche Transaction Documents final maturity date with respect to the Third Tranche and all other closing deliverables within Notes shall be the Maturity Date, (ii) there shall be no scheduled principal amortization payments for the Third Tranche Funding Period Notes (except, following the Amortization Trigger, as set forth in Section 2.05) and (iii) the interest rate, repayment premiums, exit fees and ticking fees for the Third Tranche shall be identical to the interest rate, repayment premiums, exit fees and ticking fees, as the case may be, for the First Tranche and the Second Tranche; (e) the Issuer shall have paid all fees and original issue discount required to be paid in connection therewith, including pursuant to the Fee Letters; (f) Schedule 2.01 shall be deemed revised to reflect the commitments and commitment percentages of the Third Tranche Note Purchasers, as set forth in the Third Tranche Joinder Agreement; (g) no Purchaser shall be obligated to participate in the Third Tranche, which decision shall be made in the sole discretion of each Purchaser; (h) the Third Tranche Purchasers, the Administrative Agent, Athyrium and the Credit Parties shall have entered into (i) the Third Tranche Joinder Agreement and (ii) such technical amendments to this Agreement as are necessary, in the Administrative Agent’s reasonable discretion, to effect the inclusion of the Third Tranche herein; and (i) as a condition of closing precedent to such institution of the Third Tranche. For Tranche and the avoidance effectiveness of doubt, the Third Tranche is part Joinder Agreement, the Issuer shall have delivered to the Administrative Agent a certificate of each Credit Party dated as of the June 2024 Offeringdate of such institution and effectiveness (in sufficient copies for each Purchaser) signed by a Responsible Officer of such Credit Party (i) certifying and attaching the resolutions adopted by such Credit Party approving or consenting to the Third Tranche, and (ii) certifying that, before and after giving effect to the incurrence of the Third Tranche Note Purchase Commitments (and assuming for such purposes that the Third Tranche Notes Issuance Date has occurred), (x) the representations and warranties contained in Article VI and the other Note Documents are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) on and as of the date of such incurrence, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) as of such earlier date, and except that for purposes of this Section 2.13, the representations and warranties contained in clauses (a) and (b) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01, and (y) no Default or Event of Default exists.

Third Tranche. If, within one hundred eighty (180a) calendar days after On the date of this Agreement (the “Third Tranche Condition Period”)Closing Date, each Purchaser shall deposit with the Money Escrow Agent for future return or disbursement in accordance with this Section 2.4, an aggregate amount in United States dollars equal to the product of 50% of (ix) an Event the product of Default (1) 250,000 multiplied by (2) such Purchaser's First Tranche Percentage multiplied by (y) the Closing Price on the Trading Day immediately preceding the Third Tranche Closing Date. (b) Not later than the third Trading Day prior to the Third Tranche Closing Date, each Purchaser shall deliver a written notice ("Third Tranche Purchase Notice") via facsimile to the Seller specifying the number of Shares to be purchased by such Purchaser on the Third Tranche Settlement Date (as defined in the Note) has not occurred under the Note, (ii) no event has occurred that, with the passage of time, would be an Event of Default (as defined in the Note) under the Note, (iii) the Common Stock is listed for trading on the Nasdaq Capital Market, (iv) the Company is in compliance with all of the listing standards of Nasdaq Capital Market, (v) the Company has not received any delisting or deficiency notice from Nasdaq Capital Market that remains uncured (for the avoidance of doubt, any cure period or grace period granted by Nasdaq shall be irrelevant for purposes of satisfying this condition since the deficiency must be fully curedbelow), which notice (vi1) will specify a registration statement under minimum number of Shares equal to the 1933 Act covering product of (x) 250,000 multiplied by (y) such Purchaser's First Tranche Percentage and (2) may not specify a number of Shares greater than the Holder’s resale at prevailing market prices product of (x) 500,000 multiplied by (y) such Purchaser's First Tranche Percentage. The Shares indicated on all of the June 2024 Securities issued and to be issued in connection with the Transaction Documents, Third Tranche Transaction DocumentsPurchase Notices or the notices delivered by the Purchasers under Section 2.4(d), and as applicable, are collectively referred to as the "Third Tranche Transaction Documents shall have been declared effective by Shares". (c) On the SEC and remains effective, (vii) the Common Stock shall not have traded at a price per share of less than the then applicable Floor Price (as defined in the Note) for a period of fifteen (15) consecutive calendar days 19 th Trading Day after the date of this Agreement, (viii) the Company has not breached any covenant, agreement, or other term or condition contained in the Transaction Documents, and (ix) the Second Tranche closed pursuant to the terms of Section 8(t) of this Agreement (all of the aforementioned conditions in (i) through (ix) of this sentence are referred to herein as the “Third Tranche Funding Conditions”), then, at the Company’s option, which may be exercised by giving written notice to the Buyer within the Third Tranche Condition Period so long Closing Date (such date, the "Third Tranche Settlement Date"), subject to the provisions of Section 2.6 and this Section 2.4: (A) If the Seller shall have received either (x) notice from the Money Escrow Agent of the Money Escrow Agent's receipt of the funds required to have been delivered by the Purchasers pursuant to 2.4(a) and (if applicable) Section 2.4(c)(2), or (y) other reasonably acceptable evidence of the delivery of such funds to the Money Escrow Agent, the Seller shall deliver to each Purchaser's DTC Account through the Depository Trust Company DWAC system the number of Shares indicated in such Purchaser's Third Tranche Purchase Notice. (2) If the Third Tranche Funding Conditions are satisfied Per Share Purchase Price is greater than the quotient obtained by dividing (x) the “funds deposited by a Purchaser under Section 2.4(a) by (y) the number of Third Tranche Funding Shares to be acquired by such Purchaser (as specified in such Purchaser's Third Tranche Purchase Notice”) (such quotient being referred to as the "Third Tranche Per Share Deposited Amount"), then such Purchaser shall deliver to the Buyer shall fund Money Escrow Agent an amount in United States dollars equal to the third tranche purchase price amount specified on product of (a) the Buyer’s signature page hereto (the “Third Tranche) under the same terms and conditions as the Transaction Documents (the “number of Third Tranche Transaction Documents”Shares to be acquired by such Purchaser multiplied by (b) within seven the Third Tranche Per Share Purchase Price less the Third Tranche Per Share Deposited Amount. Following its receipt of (7x) calendar days after the Buyer’s funds required to be delivered by the Purchasers in accordance with this Section 2.4(c)(2) and (y) written confirmation from the Purchasers of their receipt of the Third Tranche Funding Notice Shares required to be delivered to them in accordance with Section 2.4(c)(1), the Money Escrow Agent will disburse to the Seller the aggregate amounts deposited by all Purchasers for Third Tranche Shares other than an amount equal to 3% of the aggregate amounts deposited by all Purchasers other than S.R. West Corp., which shall be disbursed to or as directed by S.R. West Corp. in accordance with wire instructions delivered by S.R.West Corp. for such purpose. (3) If the Third Tranche Per Share Purchase Price is less than the Third Tranche Per Share Deposited Amount, then the Escrow Agent will return to or as directed by each Purchaser an amount in United States dollars equal to the product of (i) the number of Third Tranche Shares to be acquired by such Purchaser (as specified in such Purchaser's Third Tranche Purchase Notice) multiplied by (ii) the Third Tranche Per Share Deposited Amount less the Third Tranche Per Share Purchase Price. Following its receipt of written confirmation from the Purchasers of their receipt of (x) the Third Tranche Shares required to be delivered to them in accordance with Section 2.4(c)(1) and (y) the funds required to have been delivered to the Purchasers under this Section 2.4(c)(3), the Money Escrow Agent shall disburse to the Seller the aggregate amounts deposited by all Purchasers for Third Tranche Shares, less the amounts required to be returned to the Purchasers under this Section 2.4(c)(3), other than an amount equal to 3% of the aggregate amounts deposited by all Purchasers other than S.R. West Corp. and not required to be returned under this Section 2.4(c)(3), which shall be disbursed to or as directed by S.R. West Corp. in accordance with wire instructions delivered by S.R. West Corp. for such purpose. (4) If the Third Tranche Per Share Purchase Price equals the Third Tranche Per Share Deposited Amount, then following its receipt of written confirmation from the Purchasers of their receipt of the Third Tranche Shares required to be delivered to them in accordance with Section 2.4(c)(1), the Money Escrow Agent will disburse to the Seller the aggregate amounts deposited by all Purchasers for Third Tranche Shares, other than an amount equal to 3% of the aggregate amounts deposited by all Purchasers other than S.R. West Corp., which shall be disbursed to or as directed by S.R. West Corp. in accordance with wire instructions delivered by S.R. West Corp. for such purpose. (d) If the average of the Closing Prices during the seventeen Trading Days immediately following (but not including) the Third Tranche Closing Date (the “"Third Tranche Funding Pricing Period”") is greater than the Ceiling Price or less than the Floor Price, then each Purchaser shall have the right (but not the obligation) to purchase up to a number of Third Tranche Shares equal to the product of (1) 750,000 multiplied by (2) such Purchaser's First Tranche Percentage at a purchase price per Share equal to the Third Tranche Per Share Purchase Price. To exercise this right, a Purchaser will deliver to the Seller, via facsimile no later than the first Trading Day after the Third Tranche Pricing Period, a notice specifying the number of Third Tranche Shares to be purchased by such Purchaser under this Section 2.4(d). For If one or more Purchasers has elected to acquire Third Tranche Shares under this Section 2.4(d), then, subject to the avoidance provisions of doubtSections 2.6 (other than Section 2.6(e)), on the Third Tranche Settlement Date: (1) If the Seller shall have received either (x) notice from the Money Escrow Agent of the Money Escrow Agent's receipt of the funds required to have been delivered by the Purchasers pursuant to Section 2.4(a) and, if applicable 2.4(d)(2), or (y) other reasonably acceptable evidence of the delivery of such funds to the Money Escrow Agent, the Seller shall deliver to each Purchaser who exercised its rights to acquire Third Tranche Shares under this Section 2.4(d), the Third Tranche Funding Conditions must continue Shares specified by such Purchaser in its exercise notice, to such Purchaser's DTC Account through the Depository Trust Company DWAC system. (2) If (a) the product of (x) the number of Third Tranche Shares to be satisfied during acquired by a Purchaser under this Section 2.4(d) multiplied by (y) the Third Tranche Funding PeriodPer Share Purchase Price, is greater than (b) the amount deposited by such Purchaser under Section 2.4(a), then such Purchaser shall deliver to the Money Escrow Agent an amount in United States dollars equal to (a) the product of (x) the number of Third Tranche Shares to be acquired by such Purchaser multiplied by (y) the Third Tranche Per Share Purchase Price, less (b) the amount deposited by such Purchaser under Section 2.4(a). The closing Following its receipt of (x) the funds required to be delivered by the Purchasers in accordance with this Section 2.4(d)(2) and (y) written confirmation from the Purchasers of their receipt of the Third Tranche shall remain subject to the satisfaction of all of the other closing conditions and deliverables contained in each of the Third Tranche Transaction Documents Shares required to be delivered to them in accordance with Section 2.4(d)(1), the Buyer with respect Money Escrow Agent will disburse to the Seller the aggregate amounts deposited by all Purchasers for Third Tranche. Accordingly, and for the avoidance of doubt, the Company must provide signed copies of all Tranche Shares other than an amount equal to 3% of the applicable aggregate amounts deposited by all Purchasers other than S.R. West Corp., which shall be disbursed to or as directed by S.R. West Corp. in accordance with wire instructions delivered by S.R. West Corp. for such purpose. (3) If (a) the amount deposited by such Purchaser under Section 2.4(a) is greater than (b) the product of (x) the number of Third Tranche Transaction Documents with respect Shares to be acquired by a Purchaser multiplied by (y) the Third Tranche and all other closing deliverables within Per Share Purchase Price, then the Money Escrow Agent will (A) return to or as directed by such Purchaser an amount equal to (a) the amount deposited by such Purchaser under Section 2.4(a) less (b) the product of (x) the number of Third Tranche Funding Period as a condition of closing of the Third Tranche. For the avoidance of doubt, the Third Tranche is part of the June 2024 Offering.Shares to be acquired by such Purchaser under this Section 2.4(d) multiplied by (y)

Third Tranche. If(a) On the later of September 30, within one hundred eighty (180) calendar 2008 or 120 days after the date effectiveness of this Agreement (the “Third Tranche Condition Period”)Resale Registration Statement covering the Purchased Shares purchased pursuant to Section 2.1, the Company shall deliver (i) an Event of Default (as defined in the Note) has not occurred under the Note, (ii) no event has occurred that, with the passage of time, would be an Event of Default (as defined in the Note) under the Note, (iii) the Common Stock is listed for trading on the Nasdaq Capital Market, (iv) the Company is in compliance with all of the listing standards of Nasdaq Capital Market, (v) the Company has not received any delisting or deficiency notice from Nasdaq Capital Market to PERM another Subsequent Purchase Officer’s Certificate stating that remains uncured (for the avoidance of doubt, any cure period or grace period granted by Nasdaq shall be irrelevant for purposes of satisfying this condition since the deficiency must be fully cured), (vi) a registration statement under the 1933 Act covering the Holder’s resale at prevailing market prices of all of the June 2024 Securities issued and to be issued in connection with the Transaction Documents, Third Tranche Transaction Documents, and Third Tranche Transaction Documents shall have been declared effective by the SEC and remains effective, (vii) the Common Stock shall not have traded at a price per share of less than the then applicable Floor Price (as defined in the Note) for a period of fifteen (15) consecutive calendar days after the date of this Agreement, (viii) the Company has not breached any covenant, agreement, or other term or condition contained in the Transaction Documents, and (ix) the Second Tranche closed pursuant to the terms of Section 8(t) of this Agreement (all of the aforementioned conditions in (i) through (ix) of this sentence are referred to herein as the “Third Tranche Funding Conditions”), then, at the Company’s option, which may be exercised by giving written notice closing conditions applicable to the Buyer within Closing of the Third Tranche Condition Period so long the Third Tranche Funding Conditions are in Section 6.1(d) have been satisfied (the “Third Tranche Funding NoticeBring Down Representation”), ) as of the Buyer shall fund Closing Date for the third tranche purchase price amount specified on Third Tranche and (ii) its proposed business plan outlining the Buyer’s signature page hereto (use of proceeds received from PERM pursuant to the “Closing of this Third Tranche) under the same terms and conditions as the Transaction Documents Tranche (the “Third Tranche Transaction DocumentsBusiness Plan”). The Subsequent Purchase Officer’s Certificate and the Third Tranche Business Plan shall be accompanied by reasonable supporting documentation for the statements made therein. (b) If the Subsequent Purchase Officer’s Certificate makes the Third Tranche Bring Down Representation, PERM shall have the same rights granted in Section 2.2(b) to review and verify the accuracy of the Subsequent Purchaser Officer’s Certificate for 30 days from delivery of such Subsequent Purchase Officer’s Certificate. (c) If PERM believes that the Third Tranche Bring Down Representation is inaccurate and as a result does not wish to consummate the subsequent purchase, it shall, within seven the 30-day period provided in Section 2.3(b), deliver to the Company a Disagreement Notice setting forth, in reasonable detail, the reasons for its belief that the Third Tranche Bring Down Representation is inaccurate. PERM shall be deemed to have agreed that the Third Tranche Bring Down Representation is accurate (7i) calendar unless it has timely delivered to the Company a Disagreement Notice in accordance with the immediately preceding sentence and (ii) if it has timely so delivered a Disagreement Notice, except to the extent specified therein. (d) If a Disagreement Notice is timely delivered to the Company, the Company and PERM shall use their good faith efforts to reach agreement on the disputed items or amounts in order to determine whether the Third Tranche Bring Down Representation is accurate. If the Company and PERM do not resolve all disputed items or amounts within 30 days after delivery of the BuyerDisagreement Notice, then the disputed items and amounts will be submitted for determination to a Deciding Arbitrator and resolved in accordance with the procedures in Section 2.2(d). (e) If it is finally determined pursuant to this Section 2.3 that the Third Tranche Bring Down Representation is accurate and PERM approves the Third Tranche Business Plan in writing, then, on the fifth Business Day next following such determination and approval at the principal executive offices of the Company (or at such other time and place as the Company and PERM may agree), PERM will purchase, and the Company will issue and sell to PERM, an amount of shares of Common Stock equal to the Third Tranche Share Amount, free and clear of all Liens, at a per share price equal to the Third Tranche Per Share Price (such purchase being the “Third Tranche”). (f) Notwithstanding the provisions of this Section 2.3, the Parties acknowledge and agree that (i) the purchase and sale of shares pursuant to Section 2.3(e) Section 2.2(e)is intended to coincide with the Company’s receipt approved use of proceeds from such sale as outlined in the Third Tranche Business Plan and (ii) the Company shall have five (5) Business Days from the Closing of the Third Tranche Funding Notice (to use or deploy the “Third Tranche Funding Period”). For the avoidance of doubt, proceeds from the Third Tranche Funding Conditions must continue to be satisfied during in accordance with the Third Tranche Funding PeriodBusiness Plan. The closing In the event the Company cannot, or believes it will not be able to, use or deploy the proceeds it receives from the Third Tranche within such 5-day period, the Company shall promptly notify PERM. Upon such notification, PERM, in its sole discretion, may elect to postpone the Closing of the Third Tranche shall remain subject to until such time as the satisfaction of all of the other closing conditions and deliverables contained in each of the Third Tranche Transaction Documents to be delivered to the Buyer Company can comply with respect to such 5-day requirement. If, after Closing the Third Tranche. Accordingly, and for the avoidance of doubt, the Company must provide signed copies has not used or deployed the proceeds therefrom within five (5) Business Days of all such Closing, PERM, in its sole discretion, shall have the right (but not the obligation) to require the Company to return the money PERM paid for the shares of the applicable Common Stock acquired in such Third Tranche Transaction Documents with respect to the Third Tranche and all other closing deliverables within the Third Tranche Funding Period as a condition PERM in exchange for PERM’s return of closing of the Third Tranche. For the avoidance of doubt, the Third Tranche is part of the June 2024 Offeringsuch shares.