Additional Financings. The Company shall not, directly nor indirectly, without the prior written consent of the Holder, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its Common Stock or securities convertible into Common Stock, or file any registration statement, including those on Form S-8 for any securities (a "SUBSEQUENT FINANCING"), in either case ending on the earlier to occur of (i) 360 (three hundred and sixty) days after the effective date of the registration statement covering resale of the shares of Common Stock underlying the Debentures (the “Effective Date”) and (ii) the date on which the full Face Amount, accrued interest and penalties, if any, on the Debentures have been paid ("Lock Up Period"), as set forth in the Debenture Agreement. After May 2, 2006, the Holder shall permit one (1) issuance and registration of the Company’s Common Stock for The Tail Wind Fund, solely for settlement of the current lawsuit. During the twelve (12) month period following Closing, or if there is any outstanding balance on the Debentures, the Holder shall retain a first right of refusal for any additional financings. The Company must submit to the Holder a duly authorized term sheet of the financing and the Holder may elect, in writing within five (5) days, to exercise its right to finance the Company upon the same terms and conditions, as set forth in the Debenture Agreement. In the event the Holder does not elect to complete such financing within such period, the Company may proceed with the proposed third-party financing on the same terms and conditions as contained in the notice to Holder. If at any time while the Debenture or Warrants are outstanding, if the Company issues or agrees to issue any Common Stock or securities convertible into or exercisable for shares of Common Stock (or modify any of the foregoing which may be outstanding prior to the execution of this Agreement) to any person or entity at a price per share or conversion or exercise price per share less than the Fixed Conversion Price, or if less than the Warrant exercise price in respect of the Warrant Shares, with or without the consent of the Holder, the Fixed Conversion Price and Warrant Exercise Price shall automatically be reduced to a price twenty percent (20%) lower than the price of the new issuance. Additionally, if the Company shall, issue or agree to issue any of the aforementioned services to any person, firm or corporation at terms deemed by the Holder to be more favorable to the other person or entity than the terms or conditions of this Offering, then the Holder is granted the right, at its election, to modify any term of this Offering to match any more favorable term provided by the Company to such person or entity. The rights of the Holder in this Section (v) are in addition to any other right the Holder has pursuant to this Subscription Agreement and the Transaction Documents. In the event the exercise of the rights described in the preceding paragraph would result in the issuance of an amount of Common Stock of the Company that would exceed the maximum amount that may be issued to the Holder calculated in the manner described in Section 3 (d) of this Agreement, then the issuance of such additional shares of Common Stock of the Company to such Subscriber will be deferred in whole or in part until such time as such Subscriber is able to beneficially own such Common Stock without exceeding the maximum amount set forth calculated in the manner described in Section 3 (d) of this Agreement. The determination of when such common stock may be issued shall be made by each Holder.
Appears in 2 contracts
Samples: Subscription Agreement (Eagle Broadband Inc), Subscription Agreement (Eagle Broadband Inc)
Additional Financings. The Company shall not, directly nor indirectly, without the prior written consent of the Holder, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its Common Stock or securities convertible into Common Stock, or file any registration statement, including those on Form S-8 for any securities (a "SUBSEQUENT FINANCING"“Subsequent Financing”), in either case ending on the earlier to occur of (i) 360 (three hundred and sixty) days after the effective date of the registration statement covering resale of the shares of Common Stock underlying the Debentures (the “Effective Date”) and (ii) the date on which the full Face Amount, accrued interest Amount and penalties, if any, on the Debentures have been paid ("“Lock Up Period"”), as set forth in the Debenture AgreementDebenture. After May 2, 2006, the Holder shall permit one (1) issuance and registration of the Company’s Common Stock for The Tail Wind Fund, solely for settlement of the current lawsuit. During the twelve (12) month period following Closing, or if If there is any outstanding balance on the Debentures, the Holder shall retain a first right of refusal for any additional financings. The Company must submit to the Holder a duly authorized term sheet of the financing and the Holder may elect, in writing within five (5) business days, to exercise its right to finance the Company upon the same terms and conditions, as set forth in the Debenture AgreementDebenture. In the event the Holder does not elect to complete such financing within such period, the Company may proceed with the proposed third-party financing on the same terms and conditions as contained in the notice to Holder. If at any time while the Debenture or Warrants are outstanding, if the Company issues or agrees to issue any Common Stock or securities convertible into or exercisable for shares of Common Stock (or modify any of the foregoing which may be outstanding prior to the execution of this Agreement) to any person or entity at a price per share or conversion or exercise price per share less than the Fixed Conversion Price, or if less than the Warrant exercise price in respect of the Warrant Shares, with or without the consent of the Holder, the Fixed Conversion Price and Warrant Exercise Price shall automatically be reduced to a price twenty percent (20%) lower than the price of the new issuance. Additionally, if the Company shall, shall issue or agree to issue any of the aforementioned services securities to any person, firm or corporation at terms deemed by the Holder to be more favorable to the other person or entity than the terms or conditions of this Offering, then the Holder is granted the right, at its election, to modify any term of this Offering to match any more favorable term provided by the Company to such person or entity. The rights of the Holder in this Section (v) are in addition to any other right the Holder has pursuant to this Subscription Agreement and the Transaction Documents. In the event the exercise of the rights described in the preceding paragraph would result in the issuance of an amount of Common Stock of the Company that would exceed the maximum amount that may be issued to the Holder calculated in the manner described in Section 3 (d) 3.d. of this Subscription Agreement, then the issuance of such additional shares of Common Stock of the Company to such Subscriber will be deferred in whole or in part until such time as such Subscriber is able to beneficially own such Common Stock without exceeding the maximum amount set forth calculated in the manner described in Section 3 (d) 3.d. of this Subscription Agreement. The determination of when such common stock Common Stock may be issued shall be made by each the Holder.
Appears in 1 contract
Samples: Subscription Agreement (iTalk Inc.)
Additional Financings. The Company shall agrees that during the period beginning on the date hereof and ending on the date which is one hundred eighty (180) days following the Closing Date (the "Lock-Up Period"), the Company will not, directly nor indirectly, without the prior written consent of the HolderPurchasers or their designees, offercontract with any party to obtain additional financing (an "Additional Financing"). If the Purchasers consent to such Additional Financing, sellthe Company will not conduct any Additional Financing during the Lock-Up Period unless it shall have first delivered to the Purchaser, grant at least ten (10) Business Days prior to the closing of such Additional Financing, written notice describing the proposed Additional Financing, including the terms and conditions thereof, and providing the Purchasers and their affiliates an option during the ten (10) Business Day period following delivery of such notice to purchase any or all of the securities being offered in the Additional Financing on the same terms as contemplated by such Additional Financing. Such option shall be exercised by each applicable Purchaser giving written notice to purchasethe Company within such period of its agreement to buy a specified amount of the offered securities. Closing of such sale shall be contemporaneous with the closing of the offering with investors other than the Purchasers (or, or otherwise dispose if there are no other such investors, on a date specified by the Company), provided that the Company shall provide written notice to each applicable Purchaser at least five (5) Business Days prior to any such closing. To the extent that the Purchasers, in the aggregate, elect to purchase more than all of such securities, the amount that each Purchaser shall be entitled to purchase shall be pro rated based on the Purchaser's Pro Rata Percentage. To the extent that the terms of an Additional Financing are changed in a manner that is at least partially favorable to prospective investors, the Company shall notify the Purchasers of all changes in such terms and the Purchasers shall have another ten (or announce any offer, sale, grant or any 10) Business Day option to purchase or other disposition) any of its Common Stock or securities convertible into Common Stock, or file any registration statement, including those on Form S-8 for any securities (a "SUBSEQUENT FINANCING"), in either case ending on the earlier revised terms and otherwise in accordance with the provisions hereof. The limitations referred to occur of in this Section 5(i) shall not apply to (i) 360 any transaction involving issuances of securities as consideration in a merger, consolidation or acquisition of assets, or in connection with any strategic partnership, collaboration or joint venture (three hundred and sixtythe primary purpose of which is not to raise capital), or as consideration for the acquisition of a business, product or license by the Company, (ii) days after the effective date issuance of securities pursuant to widely distributed underwritten public offering, (iii) the issuance of securities upon exercise or conversion of the registration statement covering resale Company's options, warrants or other convertible securities outstanding as of the date hereof as set forth in Schedule 4(c) or issued pursuant to this Agreement, (iv) the issuance of warrants or shares of Common Stock underlying upon exercise thereof to WFVK or its assigns at the Debentures Closing in consideration of its services to the Company as placement agent for the financing contemplated by this Agreement, (the “Effective Date”) and (iiv) the date on which grant of additional options or warrants, or the full Face Amountissuance of additional securities, accrued interest and penaltiesunder any duly authorized Company stock option, if any, on stock purchase or restricted stock plan for the Debentures have been paid ("Lock Up Period"), as set forth in the Debenture Agreement. After May 2, 2006, the Holder shall permit one (1) issuance and registration benefit of the Company’s Common Stock for The Tail Wind Fund's employees, solely for settlement of the current lawsuit. During the twelve consultants or directors; or (12vi) month period following Closing, any financing with no equity or if there is any outstanding balance on the Debentures, the Holder shall retain a first right of refusal for any additional financings. The Company must submit equity-linked securities made to the Holder Company by a duly authorized term sheet of the financing and the Holder may elect, in writing within five (5) days, to exercise its right to finance the Company upon the same terms and conditions, as set forth financial institution engaged in the Debenture Agreement. In the event the Holder does not elect to complete business of lending money such financing within such periodas a bank, the Company may proceed with the proposed third-party financing on the same terms and conditions as contained in the notice to Holder. If at any time while the Debenture trust company, insurance company or Warrants are outstanding, if the Company issues or agrees to issue any Common Stock or securities convertible into or exercisable for shares of Common Stock (or modify any of the foregoing which may be outstanding prior to the execution of this Agreement) to any person or entity at a price per share or conversion or exercise price per share less than the Fixed Conversion Price, or if less than the Warrant exercise price in respect of the Warrant Shares, with or without the consent of the Holder, the Fixed Conversion Price and Warrant Exercise Price shall automatically be reduced to a price twenty percent (20%) lower than the price of the new issuance. Additionally, if the Company shall, issue or agree to issue any of the aforementioned services to any person, firm or corporation at terms deemed by the Holder to be more favorable to the other person or entity than the terms or conditions of this Offering, then the Holder is granted the right, at its election, to modify any term of this Offering to match any more favorable term provided by the Company to such person or entity. The rights of the Holder in this Section (v) are in addition to any other right the Holder has pursuant to this Subscription Agreement and the Transaction Documents. In the event the exercise of the rights described in the preceding paragraph would result in the issuance of an amount of Common Stock of the Company that would exceed the maximum amount that may be issued to the Holder calculated in the manner described in Section 3 (d) of this Agreement, then the issuance of such additional shares of Common Stock of the Company to such Subscriber will be deferred in whole or in part until such time as such Subscriber is able to beneficially own such Common Stock without exceeding the maximum amount set forth calculated in the manner described in Section 3 (d) of this Agreement. The determination of when such common stock may be issued shall be made by each Holderinstitutional lender.
Appears in 1 contract
Additional Financings. The Company shall not, directly nor indirectly, without the prior written consent of the Holder, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its Common Stock or securities convertible into Common Stock, or file any registration statement, including those on Form S-8 for any securities (a "SUBSEQUENT FINANCING"“Subsequent Financing”), in either case ending on the earlier to occur of (i) 360 (three hundred and sixty) days after the effective date of the registration statement covering resale of the shares of Common Stock underlying the Debentures (the “Effective Date”) and (ii) the date on which the full Face Amount, accrued interest and penalties, if any, on the Debentures have been paid in full ("“Lock Up Period"”), as set forth in the Debenture Agreement. After May 2, 2006, the Holder shall permit one (1) issuance and registration of the Company’s Common Stock for The Tail Wind Fund, solely for settlement of the current lawsuitDebenture. During the twelve (12) month period following Closing, or if there is any outstanding balance on the DebenturesLock Up Period, the Holder shall retain a first right of refusal for any additional financings. The Company must submit to the Holder a duly authorized term sheet of the financing and the Holder may elect, in writing within five (5) business days, to exercise its right to finance the Company upon the same terms and conditions, as set forth in the Debenture AgreementDebenture. In the event the Holder does not elect to complete such financing within such period, the Company may proceed with the proposed third-party financing on the same terms and conditions as contained in the notice to Holder. If at any time while the Debenture or Warrants are outstanding, if the Company issues or agrees to issue any Common Stock or securities convertible into or exercisable for shares of Common Stock (or modify any of the foregoing which may be outstanding prior to the execution of this Agreement) to any person or entity at a price per share or conversion or exercise price per share less than the Fixed Conversion Price, or if less than the Warrant exercise price in respect of the Warrant Shares, with or without the consent of the Holder, the Fixed Conversion Price and Warrant Exercise Price shall automatically be reduced to a price twenty percent (20%) lower than the price of the new issuance. Additionally, if the Company shall, shall issue or agree to issue any of the aforementioned services securities to any person, firm or corporation at terms deemed by the Holder to be more favorable to the other person or entity than the terms or conditions of this Offering, then the Holder is granted the right, at its election, to modify any term of this Offering to match any more favorable term provided by the Company to such person or entity. The rights of the Holder in this Section (v) are in addition to any other right the Holder has pursuant to this Subscription Agreement and the Transaction Documents. In the event the exercise of the rights described in the preceding paragraph would result in the issuance of an amount of Common Stock of the Company that would exceed the maximum amount that may be issued to the Holder calculated in the manner described in Section 3 (d) 3.d. of this Subscription Agreement, then the issuance of such additional shares of Common Stock of the Company to such Subscriber will be deferred in whole or in part until such time as such Subscriber is able to beneficially own such Common Stock without exceeding the maximum amount set forth calculated in the manner described in Section 3 (d) 3.d. of this Subscription Agreement. The determination of when such common stock Common Stock may be issued shall be made by each the Holder.
Appears in 1 contract
Additional Financings. The Company shall not, directly nor indirectly, without From the prior written consent date hereof until the second anniversary of the HolderClosing Date, offer, sell, grant the Investor will have a right of participation with respect to any option to purchase, or otherwise dispose sales of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its Common Stock the Company's securities in a non-registered or securities convertible into Common Stock, or file any registration statement, including those on Form S-8 for any securities "shelf" offering (a "SUBSEQUENT FINANCING"), in either case ending on subject to the earlier to occur of (i) 360 (three hundred and sixty) days after the effective date of the registration statement covering resale of the shares of Common Stock underlying the Debentures (the “Effective Date”) and (ii) the date on which the full Face Amount, accrued interest and penalties, if any, on the Debentures have been paid ("Lock Up Period"), as exclusions set forth in the Debenture definition of "Excluded Transaction" in the Purchase Agreement) capital raising transaction on and subject to the terms and conditions set forth in this Section 9(a). After May 2, 2006During such period, the Holder Company shall permit one give written notice (1a "Financing Notice") issuance and registration of the Company’s Common Stock for The Tail Wind Fund, solely for settlement of the current lawsuit. During the twelve (12) month period following Closing, or if there is any outstanding balance on the Debentures, the Holder shall retain a first right of refusal for any additional financings. The Company must submit to the Holder a duly authorized term sheet of the financing and the Holder may elect, in writing Investor within five (5) days, business days following any non-registered or "shelf" sale (subject to exercise its right to finance the Company upon the same terms and conditions, as exclusions set forth in the Debenture Agreement. In definition of "Excluded Transaction") of any of the event Company's equity securities or any securities convertible into or exchangeable or exercisable for such securities in a capital raising transaction (including, without limitation, any Variable Rate Transaction or MFN Transaction) (a "Participation Transaction"); provided, however, that if the Holder does not elect approval of the Company's shareholders is required by the rules and regulations of NASDAQ or any other applicable market, exchange, regulatory authority, agency or commission in order to complete enter into such financing within such periodParticipation Transaction, then the Company may proceed shall provide the Financing Notice to the Investor at least 10 business days prior to the filing of any proxy or information statement with the proposed third-party financing SEC seeking shareholder approval of such Participation Transaction in order to provide the Investor a reasonable period of time to exercise its rights hereunder and to have the securities the Investor elects to purchase included in such proxy or information statement. Such Financing Notice shall describe the significant business terms of such transaction and be accompanied by a copy of all transaction documents pertaining to such transaction. The Investor shall have the right (pro rata with the Other Investor (based on a 4:1 ratio for the Other Investor and the Investor) respectively, or together with other investors selected by the Investor and reasonably acceptable to the Company) to purchase, in accordance with the procedures set forth below, an amount of identical securities issued in such transaction equal to the Investor's pro rata portion of 33 1/3% of the amount purchased by such other investors (i.e., 25% of the aggregate amount of such securities issuable to the Investors and such other investors together) for the same consideration and on the same terms and conditions as contained in the notice to Holder. If at any time while the Debenture or Warrants are outstandingsuch third party sale, provided that if the aggregate amount of net proceeds raised by the Company issues in any such transaction exceeds $15 million, then for such portion of such transaction which exceeds $15 million the Investor shall have the right to purchase only its pro rata portion of 20% of such excess amount purchased by such other investors (i.e., 16 2/3% of the aggregate amount of such excess securities issuable to the Investors and such other investors together), and provided further that, notwithstanding the foregoing, the Investor shall be accorded the right to purchase not less than $1 million of securities of the Company on the same terms as the securities issued in such Participation Transaction. The Company shall not consummate any such third party transaction unless following such consummation the Investor is permitted to purchase such percentage under the terms of all transaction documents for such other transaction and under all applicable laws and regulations. Without limiting the foregoing (a) the Company shall authorize and reserve a sufficient number and amount of such securities, or agrees class or series thereof, in order to enable full participation by the Investor in such securities, class or series that is purchased by such third party, and (b) the Company shall not issue any Common Stock or securities convertible into or exercisable for in excess of such number of shares of Common Stock (or modify any securities which are convertible, exchangeable or exercisable into such number of shares of Common Stock) which, together with the foregoing which may maximum amount of securities otherwise permitted to be outstanding prior to the execution of this Agreement) to any person or entity at a price per share or conversion or exercise price per share less than the Fixed Conversion Price, or if less than the Warrant exercise price in respect of the Warrant Shares, with or without the consent of the Holder, the Fixed Conversion Price and Warrant Exercise Price shall automatically be reduced to a price twenty percent (20%) lower than the price of the new issuance. Additionally, if the Company shall, issue or agree to issue any of the aforementioned services to any person, firm or corporation at terms deemed purchased by the Holder to be more favorable to Investor and the other person or entity than the terms or conditions of this OfferingInvestor hereunder, then the Holder is granted the right, at its election, to modify any term of this Offering to match any more favorable term provided by would cause the Company to violate any shareholder approval or other requirements of NASDAQ or any other applicable market, exchange, regulatory authority, agency or commission. The Investor may elect to participate in such person transaction by delivering written notice of such election to the Company within ten (10) business days following receipt of the Financing Notice. If, subsequent to the Company giving any Financing Notice to the Investor hereunder, any material term or entitycondition of such third-party sale is changed from that disclosed in the Financing Notice and the accompanying transaction documents, the Company shall be required to provide a new Financing Notice to the Investor hereunder and the Investor shall again have the right to exercise its rights to purchase a percentage of the securities in such transaction on such changed terms and conditions as provided hereunder. The rights and obligations of this Section 9(a) shall in no way diminish the other rights of the Investor pursuant to this Section 9. Notwithstanding anything to the contrary contained herein, the number of shares of Common Stock that may be acquired by the Investor pursuant to any Participation Transaction shall not exceed a number that, when added to the total number of shares of Common Stock deemed beneficially owned by the Investor (other than by virtue of the ownership of securities or rights to acquire securities that have limitations on the Investor's right to convert, exercise or purchase similar to the limitation set forth herein), together with all shares of Common Stock deemed beneficially owned by the Investor's "affiliates" (as defined in Rule 144 of the 0000 Xxx) that would be aggregated for purposes of determining whether a group under Section 13(d) of the 1934 Act, exists, would exceed 4.99% of the total issued and outstanding shares of the Common Stock; provided, that the limitation set forth in this sentence shall not limit the ability of the Company to engage in a Participation Transaction. The rights of participation of the Holder Investor set forth in this Section (v9(a) are in addition will not apply to any other right the Holder has pursuant to this Subscription Agreement and the Transaction DocumentsExcluded Transaction. In the event the exercise All rights of the rights described Investor under this Section 9(a) shall cease and be of no further effect upon the consummation of a Change in Control Transaction (as defined in the preceding paragraph would result in the issuance of an amount of Common Stock of the Company that would exceed the maximum amount that may be issued to the Holder calculated in the manner described in Section 3 (d) of this Agreement, then the issuance of such additional shares of Common Stock of the Company to such Subscriber will be deferred in whole or in part until such time as such Subscriber is able to beneficially own such Common Stock without exceeding the maximum amount set forth calculated in the manner described in Section 3 (d) of this Agreement. The determination of when such common stock may be issued shall be made by each HolderNotes).
Appears in 1 contract
Samples: Amendment, Redemption and Exchange Agreement (Genome Therapeutics Corp)
Additional Financings. The With the exceptions set for in this Section v., --------------------- the Company shall not, directly nor indirectly, without the prior written consent of the Holder, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its Common Stock or securities convertible into Common Stock, or file any registration statement, including those on Form S-8 for any securities (a "SUBSEQUENT FINANCING"), in either case ending on the earlier to occur of (i) 360 (three hundred and sixty) days after the effective date of the registration statement covering resale of the shares of Common Stock underlying the Debentures (the “"Effective Date”") and or (ii) the date on which the full Face Amount, accrued interest and penalties, if any, on the Debentures have been paid ("Lock Up Period"), as set forth in the Debenture Agreement. After May The Company shall be permitted to complete a bona fide employee stock option plan ("Stock Plan"), provided however, that the vesting period for any shares included in the Stock Plan are equal to or greater than two (2, 2006, ) years and the Holder shall permit one (1) issuance and registration shares are priced at or above the then current market price of the Company’s 's Common Stock for The Tail Wind Fund, solely for settlement of the current lawsuitStock. During the twelve (12) month period following Closing, or if there is any outstanding balance on the DebenturesLock Up Period, the Holder shall retain a first right of refusal for any additional financings. The Company must submit to the Holder a duly authorized term sheet of the financing and the Holder may elect, in writing within five (5) days, to exercise its right to finance the Company upon the same terms and conditions, as set forth in the Debenture Agreement. In the event the Holder does not elect to complete such financing within such period, the Company may proceed with the proposed third-party financing financing, and any registration statements required pursuant to that third-party financing, on the same terms and conditions as contained in the notice to Holder. If at any time while If, during the Debenture or Warrants are outstandingLock Up Period, if the Company issues or agrees to issue any Common Stock or securities convertible into or exercisable for shares of Common Stock (or modify any of the foregoing which may be outstanding prior to the execution of this Agreement) to any person or entity at a price per share or conversion or exercise price per share less than the Fixed Conversion Price, or if less than the Warrant exercise price in with respect of to the Warrant Shares, with or without the consent of the Holder, the Fixed Conversion Price and Warrant Exercise Price shall automatically be reduced to a price twenty percent (20%) lower than equal to the price of the new issuance. Additionally, if the Company shall, shall issue or agree to issue any of the aforementioned services securities to any person, firm or corporation at terms deemed by the Holder to be more favorable to the other person or entity than the terms or conditions of this Offering, then the Holder is granted the right, at its election, to modify any term of this Offering to match any more favorable term provided by the Company to such person or entity. The rights of the Holder in this Section (v) are in addition to any other right the Holder has pursuant to this Subscription Agreement and the Transaction Documents. In the event the exercise of the rights described in the preceding paragraph would result in the issuance of an amount of Common Stock of the Company that would exceed the maximum amount that may be issued to the Holder calculated in the manner described in Section 3 (d) of this Agreement, then the issuance of such additional shares of Common Stock of the Company to such Subscriber will be deferred in whole or in part until such time as such Subscriber is able to beneficially own such Common Stock without exceeding the maximum amount set forth calculated in the manner described in Section 3 (d) of this Agreement. The determination of when such common stock may be issued shall be made by each the Holder.
Appears in 1 contract
Additional Financings. The Company shall agrees that during the period beginning on the date hereof and ending on the date which is one hundred eighty (180) days following the Closing Date (the "Lock-Up Period"), the Company will not, directly nor indirectly, without the prior written consent of the HolderInvestors or their designees, offercontract with any party to obtain additional financing (an "Additional Financing"). If the Investors consent to such Additional Financing, sellthe Company will not conduct any Additional Financing during the Lock-Up Period unless it shall have first delivered to each Investor, grant at least ten (10) business days prior to the closing of such Additional Financing, written notice describing the proposed Additional Financing, including the terms and conditions thereof, and providing the Investors and their affiliates an option during the ten (10) business day period following delivery of such notice to purchase any or all of the securities being offered in the Additional Financing on the same terms as contemplated by such Additional Financing. Such option shall be exercised by each applicable Investor giving written notice to purchasethe Company within such period of its agreement to buy a specified amount of the offered securities. Closing of such sale shall be contemporaneous with the closing of the offering with investors other than the Investors (or, or otherwise dispose if there are no other such investors, on a date specified by the Company), provided that the Company shall provide written notice to each applicable Investor at least five (5) business days prior to any such closing. To the extent that the Investors, in the aggregate, elect to purchase more than all of such securities, the amount that each Investor shall be entitled to purchase shall be pro rated based on the Investor's Pro Rata Percentage. "Pro Rata Percentage" shall mean, with respect to any Investor, a percentage computed by dividing the Purchase Price paid hereunder by such Investor by the aggregate Purchase Price paid hereunder by all of the Investors. To the extent that the terms of an Additional Financing are changed in a manner that is at least partially favorable to prospective investors, the Company shall notify the Investors of all changes in such terms and the Investors shall have another ten (or announce any offer, sale, grant or any 10) business day option to purchase or other disposition) any of its Common Stock or securities convertible into Common Stock, or file any registration statement, including those on Form S-8 for any securities (a "SUBSEQUENT FINANCING"), in either case ending on the earlier revised terms and otherwise in accordance with the provisions hereof. The limitations referred to occur of in this Section 4.7 shall not apply to (i) 360 any transaction involving issuances of securities as consideration in a merger, consolidation or acquisition of assets, or in connection with any strategic partnership, collaboration or joint venture (three hundred and sixtythe primary purpose of which is not to raise capital), or as consideration for the acquisition of a business, product or license by the Company, (ii) days after the effective date issuance of securities pursuant to widely distributed underwritten public offering, (iii) the issuance of securities upon exercise or conversion of the registration statement covering resale Company's options, warrants or other convertible securities outstanding as of the date hereof or issued pursuant to this Agreement, (iv) the issuance of warrants or shares of Common Stock underlying upon exercise thereof to Wells Fargo Securities, LLC or its assigns at the Debentures Closing in considexxxxxn of its services to the Company as placement agent for the financing contemplated by this Agreement, (the “Effective Date”) and (iiv) the date on which grant of additional options or warrants, or the full Face Amountissuance of additional securities, accrued interest and penaltiesunder any duly authorized Company stock option, if any, on stock purchase or restricted stock plan for the Debentures have been paid ("Lock Up Period"), as set forth in the Debenture Agreement. After May 2, 2006, the Holder shall permit one (1) issuance and registration benefit of the Company’s Common Stock for The Tail Wind Fund's employees, solely for settlement of the current lawsuit. During the twelve consultants or directors; (12vi) month period following Closing, or if there is any outstanding balance on the Debentures, the Holder shall retain a first right of refusal for any additional financings. The Company must submit to the Holder a duly authorized term sheet of the financing and the Holder may elect, in writing within five (5) days, to exercise its right to finance the Company upon the same terms and conditions, as set forth in the Debenture Agreement. In the event the Holder does not elect to complete such financing within such period, the Company may proceed with the proposed third-party financing on the same terms and conditions as contained in the notice to Holder. If at any time while the Debenture or Warrants are outstanding, if the Company issues or agrees to issue any Common Stock or securities convertible into or exercisable for shares of Common Stock (or modify any of the foregoing which may be outstanding prior to the execution of this Agreement) to any person or entity at a price per share or conversion or exercise price per share less than the Fixed Conversion Price, or if less than the Warrant exercise price in respect of the Warrant Shares, with or without the consent of the Holder, the Fixed Conversion Price and Warrant Exercise Price shall automatically be reduced to a price twenty percent (20%) lower than the price of the new issuance. Additionally, if the Company shall, issue or agree to issue any of the aforementioned services to any person, firm or corporation at terms deemed by the Holder to be more favorable to the other person or entity than the terms or conditions of this Offering, then the Holder is granted the right, at its election, to modify any term of this Offering to match any more favorable term provided by the Company to such person or entity. The rights of the Holder in this Section (v) are in addition to any other right the Holder has pursuant to this Subscription Agreement and the Transaction Documents. In the event the exercise of the rights described in the preceding paragraph would result in the issuance of an amount securities in connection with the settlement of Common Stock of litigation; or (vii) any financing with no equity or equity-linked securities made to the Company that would exceed the maximum amount that may be issued to the Holder calculated by a financial institution engaged in the manner described in Section 3 (d) business of this Agreementlending money such as a bank, then the issuance of such additional shares of Common Stock of the Company to such Subscriber will be deferred in whole trust company, insurance company or in part until such time as such Subscriber is able to beneficially own such Common Stock without exceeding the maximum amount set forth calculated in the manner described in Section 3 (d) of this Agreement. The determination of when such common stock may be issued shall be made by each Holderother institutional lender.
Appears in 1 contract
Samples: Securities Purchase Agreement (Superconductor Technologies Inc)
Additional Financings. The Subject to the exceptions described below, the Company and its Subsidiaries shall not, directly nor indirectly, without the prior written consent not contract with any party for any equity financing (including any debt financing with an equity component) or issue any equity securities of the Holder, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant Company or any Subsidiary or securities convertible or exchangeable into or for equity securities of the Company or any Subsidiary (including debt securities with an equity component) in any form (“Future Offerings”) for so long as Stonepine owns at least 15% of the Company’s outstanding equity securities, unless it shall have first delivered to Stonepine written notice (the “Future Offering Notice”) describing the proposed Future Offering, including the terms and conditions thereof, and providing Stonepine an option to purchase or other dispositionup to its Aggregate Percentage (as defined below) any of its Common Stock or the securities convertible into Common Stockto be issued in such Future Offering, or file any registration statement, including those on Form S-8 for any securities (a "SUBSEQUENT FINANCING")as of the date of delivery of the Future Offering Notice, in either case ending on the earlier Future Offering (the limitations referred to occur in the preceding sentence are collectively referred to as the “Capital Raising Limitations”). For purposes of this Section 2, “Aggregate Percentage” at any time with respect to Stonepine shall mean the percentage obtained by dividing (i) 360 (three hundred and sixty) days after the effective date aggregate number of the registration statement covering resale of the shares of Common Stock underlying initially issued to Stonepine on the Debentures (the “Effective Date”) and date hereof by (ii) the date aggregate number of shares of Common Stock outstanding, on which the full Face Amount, accrued interest and penalties, if anya fully diluted basis, on the Debentures have been paid ("Lock Up Period")date hereof. Stonepine can exercise its option to participate in a Future Offering by delivering written notice thereof to participate to the Company within three business days after receipt of a Future Offering Notice, as set forth which notice shall state the quantity of securities being offered in the Debenture AgreementFuture Offering that Stonepine will purchase, up to its Aggregate Percentage. After May In the event Stonepine fails to elect to fully participate in the Future Offering within the periods described in this Section 2, 2006, the Holder Company shall permit one (1) issuance and registration have 30 days thereafter to sell the securities of the Company’s Common Stock for The Tail Wind FundFuture Offering that Stonepine did not elect to purchase, solely for settlement of the current lawsuit. During the twelve (12) month period following Closing, or if there is any outstanding balance on the Debentures, the Holder shall retain a first right of refusal for any additional financings. The Company must submit upon terms and conditions no more favorable to the Holder a duly authorized term sheet of the financing and the Holder may elect, in writing within five (5) days, to exercise its right to finance the Company upon the same terms and conditions, as set forth purchasers thereof than specified in the Debenture AgreementFuture Offering Notice. In the event the Holder does Company has not elect to complete sold such financing securities of the Future Offering within such 30-day period, the Company may proceed with the proposed third-party financing on the same terms and conditions as contained shall not thereafter issue or sell such securities without first offering such securities to Stonepine in the notice manner provided in this Section 2. The Capital Raising Limitations shall not apply to Holder. If at any time while the Debenture or Warrants are outstanding, if the Company issues or agrees to issue any Common Stock or securities convertible into or exercisable for shares of Common Stock (or modify any of the foregoing which may be outstanding prior to the execution of this Agreementi) to any person or entity at a price per share or conversion or exercise price per share less than the Fixed Conversion Price, or if less than the Warrant exercise price in respect of the Warrant Shares, loan from a commercial bank with or without an equity feature, (ii) any transaction involving the consent Company’s issuances of securities (A) as consideration in a merger or consolidation, (B) in connection with any strategic partnership or joint venture (the Holderprimary purpose of which is not to raise equity capital), or (C) as consideration for the Fixed Conversion Price and Warrant Exercise Price shall automatically be reduced to acquisition of a price twenty percent (20%) lower than the price of the new issuance. Additionallybusiness, if the Company shallproduct, issue license or agree to issue any of the aforementioned services to any person, firm or corporation at terms deemed by the Holder to be more favorable to the other person or entity than the terms or conditions of this Offering, then the Holder is granted the right, at its election, to modify any term of this Offering to match any more favorable term provided assets by the Company (the primary purpose of which is not to such person raise equity capital), (iii) the issuance of securities upon exercise or entity. The rights conversion of the Holder in this Section Company’s options, warrants or other convertible securities outstanding as of the date hereof, (iv) the grant of additional options or warrants, or the issuance of additional securities, under any Company stock option plan, restricted stock plan or stock purchase plan for the benefit of, and to incentivize, the Company’s employees or directors, or (v) are in addition any Exempt Issuance to any other right the Holder has pursuant to this Subscription Agreement and the Transaction Documents. In the event the exercise of the rights described extent not covered in the preceding paragraph would result in the issuance of an amount of Common Stock of the Company that would exceed the maximum amount that may be issued to the Holder calculated in the manner described in Section 3 (d) of this Agreement, then the issuance of such additional shares of Common Stock of the Company to such Subscriber will be deferred in whole or in part until such time as such Subscriber is able to beneficially own such Common Stock without exceeding the maximum amount other exceptions set forth calculated above. Stonepine shall not be required to participate or exercise its right of first refusal with respect to a particular Future Offering in the manner described in Section 3 (d) order to exercise its right of this Agreement. The determination of when such common stock may be issued shall be made by each Holderfirst refusal with respect to later Future Offerings.
Appears in 1 contract
Samples: Securities Purchase Agreement (Viveve Medical, Inc.)
Additional Financings. The Company shall agrees that during the period beginning on the date hereof and ending on the date which is one hundred eighty (180) days following the Closing Date (the "LOCK-UP PERIOD"), the Company will not, directly nor indirectly, without the prior written consent of the HolderPurchasers or their designees, offercontract with any party to obtain additional financing (an "ADDITIONAL FINANCING"). If the Purchasers consent to such Additional Financing, sellthe Company will not conduct any Additional Financing during the Lock-Up Period unless it shall have first delivered to the Purchaser, grant at least ten (10) Business Days prior to the closing of such Additional Financing, written notice describing the proposed Additional Financing, including the terms and conditions thereof, and providing the Purchasers and their affiliates an option during the ten (10) Business Day period following delivery of such notice to purchase any or all of the securities being offered in the Additional Financing on the same terms as contemplated by such Additional Financing. Such option shall be exercised by each applicable Purchaser giving written notice to purchasethe Company within such period of its agreement to buy a specified amount of the offered securities. Closing of such sale shall be contemporaneous with the closing of the offering with investors other than the Purchasers (or, or otherwise dispose if there are no other such investors, on a date specified by the Company), provided that the Company shall provide written notice to each applicable Purchaser at least five (5) Business Days prior to any such closing. To the extent that the Purchasers, in the aggregate, elect to purchase more than all of such securities, the amount that each Purchaser shall be entitled to purchase shall be pro rated based on the Purchaser's Pro Rata Percentage. To the extent that the terms of an Additional Financing are changed in a manner that is at least partially favorable to prospective investors, the Company shall notify the Purchasers of all changes in such terms and the Purchasers shall have another ten (or announce any offer, sale, grant or any 10) Business Day option to purchase or other disposition) any of its Common Stock or securities convertible into Common Stock, or file any registration statement, including those on Form S-8 for any securities (a "SUBSEQUENT FINANCING"), in either case ending on the earlier revised terms and otherwise in accordance with the provisions hereof. The limitations referred to occur of in this Section 5(i) shall not apply to (i) 360 any transaction involving issuances of securities as consideration in a merger, consolidation or acquisition of assets, or in connection with any strategic partnership, collaboration or joint venture (three hundred and sixtythe primary purpose of which is not to raise capital), or as consideration for the acquisition of a business, product or license by the Company, (ii) days after the effective date issuance of securities pursuant to widely distributed underwritten public offering, (iii) the issuance of securities upon exercise or conversion of the registration statement covering resale Company's options, warrants or other convertible securities outstanding as of the date hereof as set forth in Schedule 4(c)or issued pursuant to this Agreement,(iv) the issuance of warrants or shares of Common Stock underlying upon exercise thereof to WFVK or its assigns at the Debentures Closing in consideration of its services to the Company as placement agent for the financing contemplated by this Agreement, (the “Effective Date”) and (iiv) the date on which grant of additional options or warrants, or the full Face Amountissuance of additional securities, accrued interest and penaltiesunder any duly authorized Company stock option, if any, on stock purchase or restricted stock plan for the Debentures have been paid ("Lock Up Period"), as set forth in the Debenture Agreement. After May 2, 2006, the Holder shall permit one (1) issuance and registration benefit of the Company’s Common Stock for The Tail Wind Fund's employees, solely for settlement of the current lawsuit. During the twelve consultants or directors; or (12vi) month period following Closing, any financing with no equity or if there is any outstanding balance on the Debentures, the Holder shall retain a first right of refusal for any additional financings. The Company must submit equity-linked securities made to the Holder Company by a duly authorized term sheet of the financing and the Holder may elect, in writing within five (5) days, to exercise its right to finance the Company upon the same terms and conditions, as set forth financial institution engaged in the Debenture Agreement. In the event the Holder does not elect to complete business of lending money such financing within such periodas a bank, the Company may proceed with the proposed third-party financing on the same terms and conditions as contained in the notice to Holder. If at any time while the Debenture trust company, insurance company or Warrants are outstanding, if the Company issues or agrees to issue any Common Stock or securities convertible into or exercisable for shares of Common Stock (or modify any of the foregoing which may be outstanding prior to the execution of this Agreement) to any person or entity at a price per share or conversion or exercise price per share less than the Fixed Conversion Price, or if less than the Warrant exercise price in respect of the Warrant Shares, with or without the consent of the Holder, the Fixed Conversion Price and Warrant Exercise Price shall automatically be reduced to a price twenty percent (20%) lower than the price of the new issuance. Additionally, if the Company shall, issue or agree to issue any of the aforementioned services to any person, firm or corporation at terms deemed by the Holder to be more favorable to the other person or entity than the terms or conditions of this Offering, then the Holder is granted the right, at its election, to modify any term of this Offering to match any more favorable term provided by the Company to such person or entity. The rights of the Holder in this Section (v) are in addition to any other right the Holder has pursuant to this Subscription Agreement and the Transaction Documents. In the event the exercise of the rights described in the preceding paragraph would result in the issuance of an amount of Common Stock of the Company that would exceed the maximum amount that may be issued to the Holder calculated in the manner described in Section 3 (d) of this Agreement, then the issuance of such additional shares of Common Stock of the Company to such Subscriber will be deferred in whole or in part until such time as such Subscriber is able to beneficially own such Common Stock without exceeding the maximum amount set forth calculated in the manner described in Section 3 (d) of this Agreement. The determination of when such common stock may be issued shall be made by each Holderinstitutional lender.
Appears in 1 contract
Additional Financings. The Company shall not, directly nor indirectly, without the prior written consent of the Holder, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its Common Stock or securities convertible into Common Stock, or file any registration statement, including those on Form S-8 for any securities (a "SUBSEQUENT FINANCING"“Subsequent Financing”), in either case ending on the earlier later to occur of (i) 360 (three hundred and sixtysixty (360) days after the effective date of the any registration statement filed by the Company during fiscal year 2007 or while there is an outstanding balance on the Note and the Holder requests the Shares be included covering resale of the shares of Common Stock underlying the Debentures (also the “Effective Date”) and or (ii) the date on which the full Face Amount, accrued interest and penalties, if any, on the Debentures have been paid ("“Lock Up Period"”), as set forth in the Debenture Agreement. After May 2, 2006, the Holder shall permit one (1) issuance and registration of the Company’s Common Stock for The Tail Wind Fund, solely for settlement of the current lawsuitDebenture. During the twelve (12) month period following ClosingEffective Date, if such registration statement is filed, or if there is any outstanding balance on the Debentures, the Holder shall retain a first right of refusal for any additional financings. The Company must submit to the Holder a duly authorized term sheet of the financing and the Holder may elect, in writing within five (5) business days, to exercise its right to finance the Company upon the same terms and conditions, as set forth in the Debenture AgreementDebenture. In the event the Holder does not elect to complete such financing within such period, the Company may proceed with the proposed third-party financing on the same terms and conditions as contained in the notice to Holder. If at any time while the Debenture or Warrants are outstanding, if the Company issues or agrees to issue any Common Stock or securities convertible into or exercisable for shares of Common Stock (or modify any of the foregoing which may be outstanding prior to the execution of this Agreement) to any person or entity at a price per share or conversion or exercise price per share less than the Fixed Conversion Price, or if less than the Warrant exercise price in respect of the Warrant Shares, with or without the consent of the Holder, the Fixed Conversion Price and Warrant Exercise Price shall automatically be reduced to a price twenty percent (20%) lower than the price of the new issuance. Additionally, if the Company shall, shall issue or agree to issue any of the aforementioned services securities to any person, firm or corporation at terms deemed by the Holder to be more favorable to the other person or entity than the terms or conditions of this Offering, then the Holder is granted the right, at its election, to modify any term of this Offering to match any more favorable term provided by the Company to such person or entity. The rights of the Holder in this Section (v) are in addition to any other right the Holder has pursuant to this Subscription Agreement and the Transaction Documents. In the event the exercise of the rights described in the preceding paragraph would result in the issuance of an amount of Common Stock of the Company that would exceed the maximum amount that may be issued to the Holder calculated in the manner described in Section 3 (d) 3.d. of this Subscription Agreement, then the issuance of such additional shares of Common Stock of the Company to such Subscriber will be deferred in whole or in part until such time as such Subscriber is able to beneficially own such Common Stock without exceeding the maximum amount set forth calculated in the manner described in Section 3 (d) 3.d. of this Subscription Agreement. The determination of when such common stock Common Stock may be issued shall be made by each the Holder.
Appears in 1 contract
Additional Financings. The Company shall not, directly nor indirectly, --------------------- without the prior written consent of the Holder, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its Common Stock or securities convertible into Common Stock, or file any registration statement, including those on Form S-8 for any securities (a "SUBSEQUENT FINANCING"), in either case ending on the earlier to occur of (i) 360 (three hundred and sixty) days after the effective date of the registration statement covering resale of the shares of Common Stock underlying the Debentures (the “"Effective Date”") and or (ii) the date on which the full Face Amount, accrued interest and penalties, if any, on the Debentures have been paid ("Lock Up Period"), as set forth in the Debenture Agreement. After May 2, 2006, the Holder shall permit one (1) issuance and registration of the Company’s Common Stock for The Tail Wind Fund, solely for settlement of the current lawsuit. During the twelve (12) month period following ClosingEffective Date, or if there is any outstanding balance on the Debentures, the Holder shall retain a first right of refusal for any additional financings. The Company must submit to the Holder a duly authorized term sheet of the financing and the Holder may elect, in writing within five (5) business days, to exercise its right to finance the Company upon the same terms and conditions, as set forth in the Debenture Agreement. In the event the Holder does not elect to complete such financing within such period, the Company may proceed with the proposed third-party financing on the same terms and conditions as contained in the notice to Holder. If at any time while the Debenture or Warrants are outstanding, if the Company issues or agrees to issue any Common Stock or securities convertible into or exercisable for shares of Common Stock (or modify any of the foregoing which may be outstanding prior to the execution of this Agreement) to any person or entity at a price per share or conversion or exercise price per share less than the Fixed Conversion Price, or if less than the Warrant exercise price in with respect of to the Warrant Shares, with or without the consent of the Holder, the Fixed Conversion Price and Warrant Exercise Price shall automatically be reduced to a price twenty percent (20%) lower than the price of the new issuance. Additionally, if the Company shall, shall issue or agree to issue any of the aforementioned services securities to any person, firm or corporation at terms deemed by the Holder to be more favorable to the other person or entity than the terms or conditions of this Offering, then the Holder is granted the right, at its election, to modify any term of this Offering to match any more favorable term provided by the Company to such person or entity. The rights of the Holder in this Section (v) are in addition to any other right the Holder has pursuant to this Subscription Agreement and the Transaction Documents. In the event the exercise of the rights described in the preceding paragraph would result in the issuance of an amount of Common Stock of the Company that would exceed the maximum amount that may be issued to the Holder calculated in the manner described in Section 3 (d) of this Agreement, then the issuance of such additional shares of Common Stock of the Company to such Subscriber will be deferred in whole or in part until such time as such Subscriber is able to beneficially own such Common Stock without exceeding the maximum amount set forth calculated in the manner described in Section 3 (d) of this Agreement. The determination of when such common stock may be issued shall be made by each the Holder.
Appears in 1 contract
Additional Financings. The Company shall not, directly nor indirectly, without the prior written consent of the Holder, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its Common Stock or securities convertible into Common Stock, or file any registration statement, including those on Form S-8 for any securities (a "SUBSEQUENT FINANCING"“Subsequent Financing”), in either case ending on the earlier later to occur of (i) 360 (three hundred and sixtysixty (360) days after the effective date of the registration statement covering resale of the shares of Common Stock underlying the Debentures (also the “Effective Date”) and or (ii) the date on which the full Face Amount, accrued interest and penalties, if any, on the Debentures have been paid ("“Lock Up Period"”), as set forth in the Debenture Agreement. After May 2, 2006, the Holder shall permit one (1) issuance and registration of the Company’s Common Stock for The Tail Wind Fund, solely for settlement of the current lawsuitDebenture. During the twelve (12) month period following ClosingEffective Date, or if there is any outstanding balance on the Debentures, the Holder shall retain a first right of refusal for any additional financings. The Company must submit to the Holder a duly authorized term sheet of the financing and the Holder may elect, in writing within five (5) business days, to exercise its right to finance the Company upon the same terms and conditions, as set forth in the Debenture AgreementDebenture. In the event the Holder does not elect to complete such financing within such period, the Company may proceed with the proposed third-party financing on the same terms and conditions as contained in the notice to Holder. If at any time while the Debenture or Warrants are outstanding, if the Company issues or agrees to issue any Common Stock or securities convertible into or exercisable for shares of Common Stock (or modify any of the foregoing which may be outstanding prior to the execution of this Agreement) to any person or entity at a price per share or conversion or exercise price per share less than the Fixed Conversion Price, or if less than the Warrant exercise price in respect of the Warrant Shares, with or without the consent of the Holder, the Fixed Conversion Price and Warrant Exercise Price shall automatically be reduced to a price twenty percent (20%) lower than the price of the new issuance. Additionally, if the Company shall, shall issue or agree to issue any of the aforementioned services securities to any person, firm or corporation at terms deemed by the Holder to be more favorable to the other person or entity than the terms or conditions of this Offering, then the Holder is granted the right, at its election, to modify any term of this Offering to match any more favorable term provided by the Company to such person or entity. The rights of the Holder in this Section (v) are in addition to any other right the Holder has pursuant to this Subscription Agreement and the Transaction Documents. In the event the exercise of the rights described in the preceding paragraph would result in the issuance of an amount of Common Stock of the Company that would exceed the maximum amount that may be issued to the Holder calculated in the manner described in Section 3 (d) 3.d. of this Subscription Agreement, then the issuance of such additional shares of Common Stock of the Company to such Subscriber will be deferred in whole or in part until such time as such Subscriber is able to beneficially own such Common Stock without exceeding the maximum amount set forth calculated in the manner described in Section 3 (d) 3.d. of this Subscription Agreement. The determination of when such common stock Common Stock may be issued shall be made by each the Holder.
Appears in 1 contract
Additional Financings. The Company shall not, directly nor indirectly, without the prior written consent of the Holder, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its Common Stock or securities convertible into Common Stock, or file any registration statement, including those on Form S-8 for any securities (a "SUBSEQUENT FINANCING"), in either case ending on the earlier to occur of (i) 360 (three hundred and sixty) days after the effective date of the registration statement covering resale of the shares of Common Stock underlying the Debentures (the “Effective Date”) and or (ii) the date on which the full Face Amount, accrued interest and penalties, if any, on the Debentures have been paid (either being the "Lock Up Period"), as set forth in the Debenture Agreement. After May 2, 2006, the Holder shall permit one (1) issuance and registration of the Company’s Common Stock for The Tail Wind Fund, solely for settlement of the current lawsuit. During the twelve (12) month period following Closing, or if there is any outstanding balance on the DebenturesLock Up Period, the Holder shall retain a first right of refusal for any additional financings. The Company must submit to the Holder a duly authorized term sheet of the financing and the Holder may elect, in writing within five (5) business days, to exercise its right to finance the Company upon the same terms and conditions, as set forth in the Debenture Agreement. In the event the Holder does not elect to complete such financing within such period, the Company may proceed with the proposed third-party financing on the same terms and conditions as contained in the notice to Holder. If at any time while the Debenture or Warrants are outstanding, if the Company issues or agrees to issue any Common Stock or securities convertible into or exercisable for shares of Common Stock (or modify any of the foregoing which may be outstanding prior to the execution of this Agreement) to any person or entity at a price per share or conversion or exercise price per share less than the Fixed Conversion Price, or if less than the Warrant exercise price in with respect of to the Warrant Shares, with or without the consent of the Holder, the Fixed Conversion Price and Warrant Exercise Price shall automatically be reduced to a price twenty percent (20%) lower than the price of the new issuance. Additionally, if the Company shall, shall issue or agree to issue any of the aforementioned services to any person, firm or corporation at terms deemed by the Holder to be more favorable to the other person or entity than the terms or conditions of this Offering, then the Holder is granted the right, at its election, to modify any term of this Offering to match any more favorable term provided by the Company to such person or entity. The rights of the Holder in this Section (v) are in addition to any other right the Holder has pursuant to this Subscription Agreement and the Transaction Documents. In the event the exercise of the rights described in the preceding paragraph would result in the issuance of an amount of Common Stock of the Company that would exceed the maximum amount that may be issued to the Holder calculated in the manner described in Section 3 (d) of this Agreement, then the issuance of such additional shares of Common Stock of the Company to such Subscriber will be deferred in whole or in part until such time as such Subscriber is able to beneficially own such Common Stock without exceeding the maximum amount set forth calculated in the manner described in Section 3 (d) of this Agreement. The determination of when such common stock may be issued shall be made by each the Holder.
Appears in 1 contract
Samples: Subscription Agreement (Enigma Software Group, Inc)
Additional Financings. The Company shall not, directly nor indirectly, without the prior written consent of the Holder, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its Common Stock or securities convertible into Common Stock, or file any registration statement, including those on Form S-8 for any securities (a "SUBSEQUENT FINANCING"“Subsequent Financing”), in either case ending on the earlier to occur of (i) 360 (three one hundred and sixtyeighty (180) days after the effective date of the registration statement covering resale of the shares of Common Stock underlying the Debentures (also the “Effective Date”) and or (ii) the date on which the full Face Amount, accrued interest and penalties, if any, on the Debentures have been paid ("“Lock Up Period"”), as set forth in the Debenture Agreement. After May 2, 2006, the Holder shall permit one (1) issuance and registration of the Company’s Common Stock for The Tail Wind Fund, solely for settlement of the current lawsuitDebenture. During the twelve (12) month period following Closing, or if there is any outstanding balance on the DebenturesLock Up Period, the Holder shall retain a first right of refusal for any additional financings. The Company must submit to the Holder a duly authorized term sheet of the financing and the Holder may elect, in writing within five (5) business days, to exercise its right to finance the Company upon the same terms and conditions, as set forth in the Debenture AgreementDebenture. In the event the Holder does not elect to complete such financing within such period, the Company may proceed with the proposed third-party financing on the same terms and conditions as contained in the notice to Holder. If at any time while the Debenture or Warrants are is outstanding, if the Company issues or agrees to issue any Common Stock or securities convertible into or exercisable for shares of Common Stock (or modify any of the foregoing which may be outstanding prior to the execution of this Agreement) to any person or entity at a price per share or conversion or exercise price per share less than the Fixed Conversion Price, or if less than the Warrant exercise price in respect of the Warrant Shares, with or without the consent of the Holder, the Fixed Conversion Price and Warrant Exercise Price shall automatically be reduced to a price twenty percent (20%) lower than the price of the new issuanceissuance provided, however, that in no event shall the Conversion Price be less than the Floor Conversion Price (as defined in the Debenture) and provided, further, that no adjustment shall be made in the event the Company issues or distributes shares or its Common Stock in connection with (i) full or partial consideration in connection with a strategic merger, acquisition, consolidation or purchase of substantially all of the securities or assets of a corporation or other entity, (ii) the Company’s issuance of securities in connection with strategic license agreements, the entering into or acquiring of material contracts in connection with the Company’s business as currently being conducted, and other partnering arrangements so long as such issuances are not for the purpose of raising capital and are not issued for services, (iii) the Company’s issuance of Common Stock or the issuances or grants of options to purchase Common Stock pursuant to stock option plans and employee stock purchase plans in existence on the date hereof, (iv) the conversion of any notes, debentures or exercise of any warrants in existence on the date hereof, (v) as a result of the exercise of Warrants or conversion of Debentures which are granted or issued pursuant to this Agreement, (v) the payment of any interest on the Debenture issued pursuant to this Agreement and liquidated damages, or damages pursuant to the Transaction Documents (as defined in the Subscription Agreement, and (vi) as has been described in the Reports or Other Written Information filed with the Commission or delivered to the Holder prior to the Closing Date. Additionally, if the Company shall, shall issue or agree to issue any of the aforementioned services securities to any person, firm or corporation at terms deemed by the Holder to be more favorable to the other person or entity than the terms or conditions of this Offering, then the Holder is granted the right, at its election, to modify any term of this Offering to match any a more favorable term provided by the Company to such person or entity; provided, however, that Holder must review the terms of such other transaction in context of the entire transaction as compared to the Offering in determining whether such terms are more favorable than the Offering and provided, further, that Holder covenants and agrees not to solely isolate individual terms of such other transaction and modify terms of this Offering to match the most favorable terms of any such other Offering. The rights of the Holder in this Section (v) are in addition to any other right the Holder has pursuant to this Subscription Agreement and the Transaction Documents. In the event the exercise of the rights described in the preceding paragraph would result in the issuance of an amount of Common Stock of the Company that would exceed the maximum amount that may be issued to the Holder calculated in the manner described in Section 3 (d) 3.d. of this Subscription Agreement, then the issuance of such additional shares of Common Stock of the Company to such Subscriber will be deferred in whole or in part until such time as such Subscriber is able to beneficially own such Common Stock without exceeding the maximum amount set forth calculated in the manner described in Section 3 (d) 3.d. of this Subscription Agreement. The determination of when such common stock Common Stock may be issued shall be made by each the Holder.
Appears in 1 contract
Additional Financings. The Company shall not, directly nor indirectly, without the prior written consent of the Holder, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its Common Stock or securities convertible into Common Stock, or file any registration statement, including those on Form S-8 for any securities (a "SUBSEQUENT FINANCINGSubsequent Financing"), increase the Company's debt, in either case ending on the earlier later to occur of (i) 360 (three hundred and sixtysixty (360) days after the effective date of the registration statement covering resale of the shares of Common Stock underlying the Debentures (also the “"Effective Date”") and or (ii) the date on which the full Face AmountAmount (as that term is defined in the Debenture), accrued interest and penalties, if any, on the Debentures have been paid ("Lock Up Period"), as set forth in the Debenture AgreementDebenture. After May 2Company further agrees that any and all of its officers, 2006insiders, affiliates or other related parties, whether an individual, trust, business or other, shall refrain from selling any Stock during the Lock-Up Period, unless approved by Holder. Company hereby unconditionally and irrevocably grants to Holder shall permit one a right of first refusal (1"Right of First Refusal") issuance to provide any additional financing that Company may required during the Option Period (as hereinafter defined), on the terms and registration subject to the conditions contained in this provision. If during the Option Period, Company desires to secure any financing from any third party ("Proposed Financing"), Company must first deliver a notice of the Company’s Common Stock for The Tail Wind Fund, solely for settlement Proposed Financing ("Proposed Financing Notice") to Holder no less than forty-five (45) days prior to the consummation of such Proposed Financing. Such Proposed Financing Notice shall contain the material terms and conditions (including price and form of consideration) of the current lawsuit. During Proposed Financing and the twelve (12) month period following Closing, or if there is any outstanding balance on the Debentures, the Holder shall retain a first right of refusal for any additional financings. The Company must submit to the Holder a duly authorized term sheet identity of the financing and the prospective source of Proposed Financing. To exercise its Right of First Refusal, Holder may elect, in writing must deliver a notice to Company ("Company Notice") within five (5) days, to exercise its right to finance days after delivery of the Company upon the same terms and conditions, as set forth in the Debenture AgreementProposed Financing Notice. In the event the of a conflict between this Agreement and any other agreement that may have been entered into by Company and Holder does not elect to complete such financing within such periodthat contains a preexisting right of first refusal, the Company may proceed with the proposed third-party financing on the same terms and conditions as contained in the notice to Holder. If at any time while the Debenture or Warrants are outstanding, if the Company issues or agrees to issue any Common Stock or securities convertible into or exercisable for shares of Common Stock (or modify any of the foregoing which may be outstanding prior to the execution of this Agreement) to any person or entity at a price per share or conversion or exercise price per share less than the Fixed Conversion Price, or if less than the Warrant exercise price in respect of the Warrant Shares, with or without the consent of the Holder, the Fixed Conversion Price Holder acknowledge and Warrant Exercise Price shall automatically be reduced to a price twenty percent (20%) lower than the price of the new issuance. Additionally, if the Company shall, issue or agree to issue any of the aforementioned services to any person, firm or corporation at terms deemed by the Holder to be more favorable to the other person or entity than that the terms or conditions of this Offering, then the Holder is granted the right, at its election, to modify any term of this Offering to match any more favorable term provided by the Company to such person or entity. The rights of the Holder in this Section (v) are in addition to any other right the Holder has pursuant to this Subscription Agreement and the Transaction Documents. In the event the exercise of the rights described in the preceding paragraph would result in the issuance of an amount of Common Stock of the Company that would exceed the maximum amount that may be issued to the Holder calculated in the manner described in Section 3 (d) of this Agreement, then the issuance of such additional shares of Common Stock of the Company to such Subscriber will be deferred in whole or in part until such time as such Subscriber is able to beneficially own such Common Stock without exceeding the maximum amount set forth calculated in the manner described in Section 3 (d) of this Agreement. The determination of when such common stock may be issued shall be made by each Holder.this
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Samples: Subscription Agreement (Patient Portal Technologies, Inc.)
Additional Financings. The Company shall not, directly nor indirectly, without the prior written consent of the Holder, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its Common Stock or securities convertible into Common Stock, or file any registration statement, including those on Form S-8 for any securities (a "SUBSEQUENT FINANCING"), in either case ending on the earlier to occur of (i) 360 (three hundred and sixty) days after the effective date of the registration statement covering resale of the shares of Common Stock underlying the Debentures (the “Effective Date”) and (ii) the date on which the full Face Amount, accrued interest and penalties, if any, on the Debentures have been paid ("Lock Up Period"), as set forth in the Debenture Agreement. After May 2, 2006, the Holder shall permit one (1) issuance and registration of the Company’s Common Stock for The Tail Wind Fund, solely for settlement of the current lawsuit. During the twelve (12) month period following Closingthe Effective Date, or if there is any outstanding balance on the Debentures, the Holder shall retain a first right of refusal for any additional financings. The Company must submit to the Holder a duly authorized term sheet of the financing and the Holder may elect, in writing within five (5) days, to exercise its right to finance the Company upon the same terms and conditions, as set forth in the Debenture Agreement. In the event the Holder does not elect to complete such financing within such period, the Company may proceed with the proposed third-party financing on the same terms and conditions as contained in the notice to Holder. If at any time while the Debenture or Warrants are outstanding, if the Company issues or agrees to issue any Common Stock or securities convertible into or exercisable for shares of Common Stock (or modify any of the foregoing which may be outstanding prior to the execution of this Agreement) to any person or entity at a price per share or conversion or exercise price per share less than the Fixed Conversion Price, or if less than the Warrant exercise price in with respect of to the Warrant Shares, with or without the consent of the Holder, the Fixed Conversion Price and Warrant Exercise Price shall automatically be reduced to a price twenty percent (20%) lower than the price of the new issuance. Additionally, if the Company shall, shall issue or agree to issue any of the aforementioned services to any person, firm or corporation at terms deemed by the Holder to be more favorable to the other person or entity than the terms or conditions of this Offering, then the Holder is granted the right, at its election, to modify any term of this Offering to match any more favorable term provided by the Company to such person or entity. The rights of the Holder in this Section (v) are in addition to any other right the Holder has pursuant to this Subscription Agreement and the Transaction Documents. In the event the exercise of the rights described in the preceding paragraph would result in the issuance of an amount of Common Stock of the Company that would exceed the maximum amount that may be issued to the Holder calculated in the manner described in Section 3 (d) of this Agreement, then the issuance of such additional shares of Common Stock of the Company to such Subscriber will be deferred in whole or in part until such time as such Subscriber is able to beneficially own such Common Stock without exceeding the maximum amount set forth calculated in the manner described in Section 3 (d) of this Agreement. The determination of when such common stock may be issued shall be made by each the Holder.
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