Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 20% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Note) and (3) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Cryptyde, Inc.), Securities Purchase Agreement (Cryptyde, Inc.), Securities Purchase Agreement (Vinco Ventures, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 90th Trading Day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 205% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, and (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” a Permitted Equity Line (as defined in Rule 144below) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (viiv), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Evofem Biosciences, Inc.), Securities Purchase Agreement (Evofem Biosciences, Inc.), Securities Purchase Agreement (Evofem Biosciences, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes Preferred Shares (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the WarrantsCertificate of Designations. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 20% of the Common Stock issued and outstanding immediately following the Spin-Off Excluded Securities (as defined in the Note) and (3) the exercise price Certificate of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”)Designations. “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Biotricity Inc.), Securities Purchase Agreement (Biotricity Inc.), Securities Purchase Agreement (Biotricity Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 90th Trading Day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 205% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, and (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein Shares (each of the foregoing in clauses (i) through (viiiv), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Cannabics Pharmaceuticals Inc.), Securities Purchase Agreement (Cannabics Pharmaceuticals Inc.), Securities Purchase Agreement (Cannabics Pharmaceuticals Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 90th Trading Day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or Stock, standard options or similar incentive equity awards to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 205% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not loweredlowered after issuance, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, Shares and (v) any Common Stock issued or issuable by subject to conditions of Section 13(r) of the Company on or prior to the Closing in a Notes, Permitted Subsequent Placement Shares (as defined in the WarrantsNotes); provided, each subject to the Required Lock-Up (as defined in the Notes), issued in connection with strategic alliances, strategic mergers and acquisitions and strategic partnerships (each, a “Strategic Transaction”), provided that (A) the terms primary purpose of such issuance is not to raise capital as determined in good faith by the Buyers, (B) the purchaser or acquirer of such shares of Common Stock in such issuance solely consists of either (1) the actual participants in such strategic alliance or strategic partnership, (2) the actual owners of such assets or securities acquired in such merger or acquisition or (3) the shareholders, partners or members of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereofforegoing Persons, (viC) the number or amount (as the case may be) of such shares of Common Stock issued pursuant to acquisitions such Person by the Company shall not be disproportionate to such Person’s actual participation in such strategic alliance or strategic transactionspartnership or ownership of such assets or securities to be acquired by the Company (as applicable), provided that and (D) such securities shares of Common Stock are issued as “restricted securities” (as defined in Rule 144) and carry no shall not have registration rights that require would provide for or permit the filing of any allow registration statement in connection therewith for issuance or resale during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein Restricted Period (each of the foregoing in clauses (i) through (viiv), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Longfin Corp), Securities Purchase Agreement (Longfin Corp)
Additional Issuance of Securities. So long as any Buyer beneficially owns any SecuritiesNotes or Warrants, the Company will not, without the prior written consent of the Required HoldersBuyers holding a majority in aggregate principal amount of the Notes then outstanding, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the WarrantsWarrants (other than an issuance of additional Notes and/or related additional Warrants to Buyers after the date hereof in exchange (each, a “Permitted Exchange”) for Indebtedness of the Company owed to such Buyers (the “Existing Bridge Buyers”) as of the date hereof (each, an “Existing Bridge Note”). The Company agrees that for the period commencing on the date hereof and ending on the date immediately following nine months after the Applicable Closing Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debtdebt security convertible into equity, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (iA) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (iA) do not, in the aggregate, exceed more than 205% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiB) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (iA) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (iA) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (iA) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (iA) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiiC) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (ivD) the Warrant Interest Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (vE) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement Warrant Shares and (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (viF) shares of Common Stock and Convertible Securities issued pursuant to equipment strategic mergers or acquisitions of other assets or businesses, or strategic licensing or development transactions, ; provided that such securities are issued as “restricted securities” (as defined in Rule 144x) and carry no registration rights that require or permit the filing primary purpose of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be is not to a Person raise capital as determined in good faith by the Buyers, (y) the purchaser or to the equityholders acquirer of a Person) which is, itself or through its subsidiaries, an operating company or an owner such shares of an asset Common Stock in a business synergistic with the business such issuance solely consists of the Company and shall provide to the Company additional benefits in addition to the investment of funds, either (1) but shall not include a transaction the actual participants in which the Company is issuing securities primarily for the purpose of raising capital such strategic licensing or to an entity whose primary business is investing in securities and development transactions, (2) all the actual owners of such issuances after assets or securities acquired in such merger or acquisition or (3) the date hereof pursuant to this clause (vi) do notshareholders, in the aggregate, exceed more than 10% partners or members of the foregoing Persons, and (z) the number or amount (as the case may be) of such shares of Common Stock issued and outstanding immediately following to such Person by the Spin-Off Company shall not be disproportionate to such Person’s actual participation in such strategic licensing or development transactions or ownership of such assets or securities to be acquired by the Company (as defined in the Notesapplicable) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (iA) through (viiF), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Axion Power International, Inc.), Securities Purchase Agreement (Axion Power International, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any SecuritiesAugust Notes or Notes, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the WarrantsNotes. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the later of (x) the six month anniversary of the Closing Date and (y) the 90th Trading Day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure existsexists or, if later, until such time after the Applicable Date as the Equity Conditions (as defined in the Notes) are initially satisfied in full) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafterthereafter and whether pursuant to a public or private offering) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers officers, consultants or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (including, without limitation, the Equity Incentive Plan, as defined belowamended on or prior to the date hereof), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 20% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Note) and (3x) the exercise price of any such options is not loweredlowered after issuance, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the BuyersBuyers and (y) any such award of Common Stock and/or options to purchase Common Stock pursuant to an Approved Stock Plan, as applicable, will be subject to a lock-up agreement prohibiting all sales, pledges and dispositions thereof for a period of not less than one (1) year after the date hereof, except up to 35% of the shares underlying such award may be sold between April 1 to April 15 of any given year in connection with the full or partial payment of applicable taxes or tax withholding obligations arising from the issuance of an award of Common Stock or options to purchase Common Stock granted pursuant to an Approved Stock Plan; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not loweredlowered after issuance, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) shares of Common Stock or Convertible Securities, as applicable, issued upon the Warrant Shares; providedconversion, that the terms exercise or exchange of the Warrants are not amended, modified or changed on or after the date hereofAugust Notes, (v) any shares of Common Stock or Convertible Securities, as applicable, issued upon the conversion, exercise or issuable by exchange of the Company on or prior to August Warrants, and (vi) the Closing in a Permitted Subsequent Placement Helios Shares (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (viMoviePass SPA) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (viivi), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan plan, contract or arrangement or employment or consulting agreement which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer officer, director or director consultant for services provided to the Company in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Helios & Matheson Analytics Inc.), Securities Purchase Agreement (Helios & Matheson Analytics Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes Preferred Shares (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes Certificate of Designations or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 90th Trading Day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such constituting “Assumed Options” as defined in the Merger Agreement or pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 2015% of the Common Stock issued and outstanding immediately following prior to the Spin-Off date hereof (as defined in the Noteexcluding any Assumed Options) and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) securities issued under the Merger Agreement, (vi) any shares of Common Stock issued or issuable by the Company on in connection with any bona fide strategic or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); commercial alliances, acquisitions, mergers, licensing arrangements, and strategic partnerships, provided, that (x) the terms primary purpose of such issuance is not to raise capital as reasonably determined, and (y) the purchaser or acquirer or recipient of the Permitted Subsequent Placement are not amendedsecurities in such issuance solely consists of either (I) the actual participants in such strategic or commercial alliance, modified strategic or changed on commercial licensing arrangement or after the date hereofstrategic or commercial partnership, (viII) shares the actual owners of Common Stock issued pursuant to acquisitions such assets or strategic transactionssecurities acquired in such acquisition or merger or (III) the stockholders, provided that such securities are issued as “restricted securities” (as defined partners, employees, consultants, officers, directors or members of the foregoing Persons, in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth hereineach case, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset asset, in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, and (1z) but the number or amount of securities issued to such Persons by the Company shall not include a transaction be disproportionate to each such Person’s actual participation in which the Company is issuing securities primarily for the purpose of raising capital (or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% fair market value of the Common Stock issued and outstanding immediately following contribution to) such strategic or commercial alliance or strategic or commercial partnership or ownership of such assets or securities to be acquired by the Spin-Off (Company, as defined in the Notes) applicable and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” a Permitted Equity Line (as defined in Rule 144below) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Edoc Acquisition Corp.), Securities Purchase Agreement (Edoc Acquisition Corp.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the thirty (30) Trading Day (as defined in the Warrants) anniversary of the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any the Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure existsuse) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below)Securities, any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (iA) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Share Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (iA) do not, in the aggregate, exceed more than 20% 1,500,000 shares of the Common Stock issued (adjusted for stock splits, stock combinations and outstanding immediately following other similar transactions occurring after the Spin-Off (as defined in the Notedate of this Agreement) and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiB) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) issued prior to the date hereof, provided that the conversion, conversion or exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, conversion or exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, conversion or exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) is not lowered, none of such Convertible Securities are (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any of the Buyers; (iiiC) the Notes, (D) the Conversion Shares; provided, that (E) the terms of the Notes are not amended, modified or changed on or after the date hereof, Warrants and (ivF) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein Shares (each of the foregoing in clauses (iA) through (viiF), collectively the “Excluded Securities”). “Approved Stock Share Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Atrinsic, Inc.), Securities Purchase Agreement (Atrinsic, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes Preferred Shares (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes Certificate of Designations or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 90th Trading Day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 205% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, Shares and (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein Permitted Equity Line (each of the foregoing in clauses (i) through (viiv), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Auddia Inc.), Securities Purchase Agreement (Auddia Inc.)
Additional Issuance of Securities. So long as any Buyer the Investor beneficially owns any Securitiesthe Exchange Note or the Exchange Warrant, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes Exchange Note or the WarrantsExchange Warrant. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following 21st Trading Day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement 8-K Filing is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) made (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Securities Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) rights (any such issuance, offer, sale, grant, grant or disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k3(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 205% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended changed, amended, modified or waived to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed changed, amended, modified or waived in any manner that adversely affects any of the BuyersInvestor; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended changed, amended, modified or waived to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed changed, amended, modified or waived in any manner that adversely affects any of the BuyersInvestor; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) Convertible Securities, including any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant upon the conversion or exercise of Convertible Securities, issued in connection with a Subsequent Placement, in which the proceeds thereof, in whole or in part, redeems and pays in full the Exchange Note then outstanding in accordance therewith (including, without limitation, all outstanding payment obligations hereunder and thereunder); and (vi) Convertible Securities issued or issuable to acquisitions CVI Investments, Inc. or strategic transactionsits affiliates in connection with a restructuring of CVI’s outstanding investment in the Company, and further provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances until 90 days after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (viivi), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 2 contracts
Samples: Amendment and Exchange Agreement (ShiftPixy, Inc.), Amendment and Exchange Agreement (ShiftPixy, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any SecuritiesDuring the period commencing on the date hereof and ending on the date no Notes remain outstanding, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the Applicable 30th Trading Day after the Closing Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k4(j) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Share Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 205% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; and (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, and (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms issuance of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein Qualified Offering (each of the foregoing in clauses (i) through (viiv), collectively the “Excluded Securities”). “Approved Stock Share Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Alpha Cognition Inc.), Securities Purchase Agreement (Alpha Cognition Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any SecuritiesPreferred Shares or Warrants, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not directly or indirectly, issue any other securities that would cause a breach or default under the Notes Certificate of Designations or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the Applicable Stockholder Approval Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) ), is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k4(l) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock issued or issuable to directors, officers officers, employees or employees other service providers of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such optionsawards) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 2010% of the shares of Common Stock issued and outstanding immediately following as of the Spin-Off (as defined in the Note) date of such issuance and (32) the exercise price of any such options is not lowered, lowered and none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyersthereunder; (ii) shares of Common Stock issued or issuable upon the conversion or exercise of Convertible Securities (other than standard options to purchase shares of Common Stock issued or issuable pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreementhereof, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase shares of Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock those issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; , (iii) the Conversion Preferred Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Conversion Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) the Warrant Shares and any Common Stock other securities issued or issuable by the Company on pursuant to this Agreement or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms any of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereofTransaction Documents, (vi) shares securities issued as consideration for the acquisition of Common Stock issued pursuant to acquisitions another entity by the Company by merger, purchase of substantially all of the assets or strategic transactionsother reorganization or bona fide joint venture agreement, provided that such issuance is approved by the majority of the disinterested directors of the Company and provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, Restricted Period and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do does not, in the aggregate, exceed more than 105% of the shares of Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein date hereof (each of the foregoing in clauses (i) through (viivi), collectively the “Excluded Securities”) and (vii) provided that the closing price of the Common Stock on the Trading Market equals or exceeds 200% of the initial Conversion Price (as defined in the Certificate of Designations) for five consecutive Trading Days, sales of shares of Common Stock or Convertible Securities at a per share purchase price in excess of 160% of the initial Conversion Price (as defined in the Certificate of Designations) (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations and similar events; provided that if 90% of the aggregate Stated Value (as defined in the Certificate of Designations) of the Preferred Shares has been paid in full to the Buyers or otherwise converted to Common Stock, then the Company may sell shares of Common Stock at a per share purchase price in excess of 130% of the exercise price of the Warrants). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase or other awards convertible, exercisable for or exchangeable for shares of Common Stock may be issued to any employee, officer officer, director or director other service provider for services provided to the Company and/or a Subsidiary in their capacity as such.
Appears in 2 contracts
Samples: Securities Purchase Agreement (PharmaCyte Biotech, Inc.), Securities Purchase Agreement (MyMD Pharmaceuticals, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any SecuritiesNotes, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 90th Trading Day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k4(m) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 205% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) at any time the Notes remain outstanding, (A) a registered offering of Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement and/or Options (as defined in the Warrants); provided, that Warrant) in which all or a portion of the net proceeds will be used to redeem the Notes in full in accordance with the terms of the Permitted Subsequent Placement are not amendedNotes then in effect (a “Note Redemption Offering”) or (B) a private offering of securities in which all or, modified or changed on or solely if after such offering no Notes remain outstanding, a portion of the date hereofnet proceeds, as applicable, will be used to redeem the Notes in full in accordance with the terms of the Notes then in effect and (vi) shares in connection with any strategic acquisition or transaction whether through an acquisition of Common Stock issued pursuant to acquisitions stock or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing a merger of any registration statement in connection therewith during business, assets or technologies the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the primary purpose of raising which is not to raise equity capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (viivi), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 2 contracts
Samples: Securities Purchase Agreement (TimefireVR Inc.), Securities Purchase Agreement (TimefireVR Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the later to occur of (x) the 60th calendar day after the Closing Date any (y) the thirtieth calendar day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 2010% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, and (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein Shares (each of the foregoing in clauses (i) through (viiiv), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Vinco Ventures, Inc.), Securities Purchase Agreement (Vinco Ventures, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 90th Trading Day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any convertible debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 205% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock and/or Convertible Securities issued pursuant to acquisitions or strategic transactions, the Approved Acquisitions; provided that (A) the aggregate number of shares of Common Stock (on an as-exercised and as-converted basis, without regards to any limitations on exercise or conversion related thereto) does not exceed 8 million, (B) each holder of such securities are issued shares of Common Stock and/or Convertible Security, as “restricted securities” applicable, enters into a lock-up agreement, in form and substance reasonably satisfactory to the Holder, restricting any, direct or indirect, sale of such shares of Common Stock for a period of two years, (as defined in Rule 144C) and carry no registration rights that require or permit the filing primary purpose of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be is not to a Person raise capital as determined in good faith by the Buyers, (D) the purchaser or to the equityholders acquirer of a Person) which is, itself or through its subsidiaries, an operating company or an owner such shares of an asset Common Stock in a business synergistic with the business such issuance solely consists of the Company and shall provide to the Company additional benefits in addition to the investment of funds, either (1) but shall not include a transaction the actual participants in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and such Approved Acquisition, (2) all the actual owners of such issuances after assets or securities acquired in such Approved Acquisition or (3) the date hereof pursuant to this clause (vi) do notshareholders, in the aggregate, exceed more than 10% partners or members of the foregoing Persons, and (z) the number or amount (as the case may be) of such shares of Common Stock issued and outstanding immediately following to such Person by the Spin-Off Company shall not be disproportionate to such Person’s actual participation in such Approved Acquisition or ownership of such assets or securities to be acquired by the Company (as defined in the Notesapplicable) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (viiv), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Cosmos Holdings Inc.), Securities Purchase Agreement (Cosmos Holdings Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any SecuritiesThe Company agrees that during the Restricted Period, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities Securities, debt (as defined belowwith or related to equity), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent PlacementAdditional Issuance”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of the following: (i) shares of Common Stock Ordinary Shares or standard options to purchase Common Stock Ordinary Shares to directors, officers or directors (who are also employees of the Company), officers, employees or consultants of the Company in their capacity as such pursuant to an Approved Stock Share Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 20% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Note) and (3) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the BuyersBuyer; (ii) shares of Common Stock Ordinary Shares issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, conversion or exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, conversion or exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, conversion or exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any of the BuyersBuyer; (iii) the Convertible Notes; (iv) Conversion Shares; provided, that (v) the terms of the Notes are not amended, modified or changed on or after the date hereof, Warrants; and (ivvi) the Warrant Shares; provided, that (vii) the terms issuance of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior shares in regards to the Closing in a Permitted Subsequent Placement Company’s acquisition of 51% of Holu Hou Energy LLC (“HHE”) where such shares are issuable based on an earn-out structure as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of agreed upon between the Company and shall provide HHE; and (viii) additional shares that are issuable to an escrow account for the benefit of Samsung Electronics Co., Ltd. (“Samsung”) as collateral for settlement payments due to Samsung. The Company further agrees that, without prior consent of the Buyer, until the earlier of (A) twelve (12) months after Closing or (b) the date on which Buyer has sold or disposed of all Securities, the Company additional benefits in addition to the investment of funds, (1) but shall will not include a transaction in which the Company is issuing issue any floating conversion rate or variable priced securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as suchconvertible into Ordinary Shares.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Borqs Technologies, Inc.), Securities Purchase Agreement (Borqs Technologies, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated herebyi) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the Applicable ninetieth (90th) calendar day after the Initial Closing Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (period, the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or register or amend any outstanding registration statements or file any shelf registration statements or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act)), any Convertible Securities (as defined below), any debtSecurities, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k4(j)(i) shall not apply during the Restricted Period in respect of (A) the issuance of Options or Convertible Securities issued under any Approved Stock Plan, so long as (i) the aggregate number of shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such issued and issuable pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, thereto does not exceed more than 205% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (3ii) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; , (iiB) any shares of Common Stock issued by the Company upon the conversion conversion, exercise, or exercise settlement of (or otherwise pursuant to the terms of) Convertible Securities (other than standard options to purchase Common Stock or other incentive equity awards issued pursuant to an Approved Stock Plan that are covered by clause (iA) above) issued prior to outstanding on the date hereofhereof and referred to in the Registration Statement (other than standard options to purchase Common Stock or other incentive equity awards issued pursuant to an Approved Stock Plan that are covered by clause (A) above); provided, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock or other incentive equity awards issued pursuant to an Approved Stock Plan that are covered by clause (iA) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (iA) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock or other incentive equity awards issued pursuant to an Approved Stock Plan that are covered by clause (iA) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; , (iiiC) the Conversion issuances of the Underlying Shares; provided, that (D) any sale or issuance of securities under an agreement, the terms of which have been approved by the Notes are not amendedRequired Holders, modified providing for an “at-the-market” offering within the meaning of Rule 415(a)(4) of the Securities Act (an “ATM Sales Agreement”) other than a sale or changed on issuance in which a single identified investor or after group of identified investors purchases in excess of three million dollars ($3,000,000) in the aggregate of Common Stock, which shall include that certain Sales Agreement, dated as of February 6, 2023, by and between the Company and Xxxxxxx & Company, LLC and any replacement thereof, (E) any sale or issuance of securities pursuant to that certain Business Combination Agreement, dated as of March 22, 2021, by and among JAWS Spitfire Acquisition Corporation, Spitfire Merger Sub, Inc. and the Company, as amended by Amendment No. 1 to the Business Combination Agreement, dated as of July 20, 2021, by and among JAWS Spitfire Acquisition Corporation, Spitfire Merger Sub, Inc. and the Company, as in effect as of the date hereofhereof and without giving effect to any amendment, modification, waiver or supplement thereto (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants“Business Combination Agreement”); provided, that the terms sale or issuance of any such securities is made solely pursuant to the Permitted Subsequent Placement are not amended, modified or changed Business Combination Agreement that was in effect on or after the date hereofimmediately prior to the date of this Agreement, (vi) shares the issuance price of Common Stock issued pursuant to acquisitions or strategic transactionsany such securities is not lowered, provided that none of such securities are issued as “restricted securities” (as defined in Rule 144) amended to increase the number of shares issuable thereunder and carry no registration rights that require none of the terms or permit the filing conditions of any registration statement such securities are otherwise materially changed in connection therewith during any manner that adversely affects any of the prohibition period set forth hereinBuyers or (F) the issuance of securities of the Company or any Subsidiary of the Company as consideration in acquisitions, and divestitures, partnerships, licenses, collaborations or strategic transactions approved by the board of directors or a majority of the members of a committee of directors of the Company or applicable Subsidiary established for such purpose, provided that any such issuance shall only be to a Person (or to the equityholders equity holders of a Person) which is, itself or through its subsidiariessubsidiaries or controlled affiliates, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.a
Appears in 2 contracts
Samples: Voting Agreement (Velo3D, Inc.), Voting Agreement (Velo3D, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the Applicable seven month anniversary of the Closing Date (provided that such period shall be extended by the number of calendar days Trading Days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure existsuse) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (iA) shares of Common Stock or standard options to purchase Common Stock or other equity incentive awards to directors, officers or consultants, endorsers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (iA) do not, in the aggregate, exceed more than 2015% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not loweredlowered after issuance by subsequent amendment thereof, none of such options are amended subsequent to issuance to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are subsequent to issuance otherwise materially changed in any manner that adversely affects any of the Buyers; (iiB) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock or other equity incentive awards issued pursuant to an Approved Stock Plan that are covered by clause (A) above) issued prior to the date hereof, provided that the conversion price of any such Convertible Securities (other than options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (iA) above) issued prior to the date hereofis not lowered by subsequent amendment, provided that the conversion, exercise or other method none of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (iA) above) are subsequently amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (iA) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiiC) the Conversion Shares; , (D) the Interest Shares, (E) the Warrant Shares and (F) any securities issued in connection with strategic alliances, acquisitions, mergers, and strategic partnerships, provided, that (1) the terms primary purpose of such issuance is not to raise capital as determined in good faith by the Company’s board of directors, (2) the purchaser or acquirer of the Notes are not amended, modified securities in such issuance solely consists of either (x) the actual participants in such strategic alliance or changed on or after the date hereofstrategic partnership, (ivy) the Warrant Shares; providedactual owners of such assets or securities acquired in such acquisition or merger or (z) the stockholders, that the terms partners or members of the Warrants are not amended, modified foregoing Persons and (3) the number or changed on or after the date hereof, (v) any Common Stock amount of securities issued or issuable to such Person by the Company on or prior shall not be disproportionate to either (x) the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms fair market value of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant such Person’s actual contribution to acquisitions such strategic alliance or strategic transactionspartnership or (y) the proportional ownership of such assets or securities to be acquired by the Company, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein applicable (each of the foregoing in clauses (iA) through (viiF), collectively the “Excluded Securities”)) and (G) any other securities issued in connection with strategic alliances, acquisitions, mergers, and strategic partnerships. “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard Stock, options to purchase Common Stock and other equity incentive awards may be issued to any employee, officer officer, director, consultant or director endorser for services provided to the Company in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Internet Media Services, Inc.), Securities Purchase Agreement (Fuse Science, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required HoldersHolders (as defined below), issue any Notes Preferred Shares (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrantsany Transaction Document. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the Applicable Date 90th Trading Day after the date hereof (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso provision on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure existsuse) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly indirectly: (i) amend or modify (whether by an amendment, waiver, exchange of securities, or otherwise) any of the Company’s warrants to purchase Common Stock that are outstanding as of the date hereof; or (ii) issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) rights (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k4(m) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers third party service providers in lieu of or employees of the Company in their capacity as such pursuant addition to an Approved Stock Plan (as defined below), cash for services rendered; provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 2015% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (ii) do not, in the aggregate, exceed more than 15% of the Common Stock issued and outstanding immediately prior to the date hereof and (2) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (iii) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (iii) above) is not loweredlowered other than as may be required by the terms of such Convertible Securities in effect as of the date hereof, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (iii) above) are amended to increase the number of shares issuable thereunder other than as may be required by the terms of such Convertible Securities in effect as of the date hereof and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (iii) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiiiv) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereofWarrant Preferred Shares, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactionsthe Warrant, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein Common Shares (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”) and (viii) a bona fide public offering of securities of the Company, which (A) would not reasonably be expected to result in the occurrence of a Triggering Event (as defined in the Certificate of Designations), (B) results in gross proceeds in an amount not less than $2 million and not greater than $3 million, (C) consists of a single offering with only one closing (subject to any subsequent closing of an overallotment option granted to the underwriters) and (D) is consummated pursuant to a registration statement on Form S-3. “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Magnegas Corp), Securities Purchase Agreement (Magnegas Corp)
Additional Issuance of Securities. So long as any Buyer beneficially owns any SecuritiesPreferred Shares or Warrants, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not directly or indirectly, issue any other securities that would cause a breach or default under the Notes Certificate of Designations or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 90th day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) ), is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock issued or standard options to purchase Common Stock issuable to directors, officers officers, employees or employees other service providers of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such optionsawards) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 205% of the shares of Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, lowered and none of such options are amended to increase the number of shares issuable thereunder and none or extend the term of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyersoptions; (ii) shares of Common Stock issued or issuable upon the conversion or exercise of Convertible Securities (other than standard options to purchase shares of Common Stock issued or issuable pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase shares of Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock those issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that materially adversely affects any of the Buyers; (iii) the Conversion Preferred Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Conversion Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) the Warrant Shares and any other securities issued or issuable pursuant to this Agreement or any of the Transaction Documents, including, without limitation, any shares of Common Stock issued or issuable pursuant to Section 9 of the Certificate of Designations, and (vi) securities issued as consideration for the acquisition of another entity by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); providedby merger, that the terms purchase of substantially all of the Permitted Subsequent Placement are not amendedassets or other reorganization or bona fide joint venture agreement, modified or changed on or after provided that such issuance is approved by the date hereof, (vi) shares majority of Common Stock issued pursuant to acquisitions or strategic transactions, the disinterested directors of the Company and provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, Restricted Period and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do does not, in the aggregate, exceed more than 105% of the shares of Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein date hereof (each of the foregoing in clauses (i) through (viivi), collectively the “Excluded Securities”) and (vii) provided the Equity Conditions (as defined in the Certificate of Designations) are then satisfied and the closing price of the Common Stock on the Trading Market equals or exceeds 200% of the initial Conversion Price (as defined in the Certificate of Designations) for three consecutive Trading Days, sales of shares of Common Stock or Convertible Securities at a per share purchase price in excess of 160% of the initial Conversion Price (as defined in the Certificate of Designations) (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations and similar events; provided that if 90% of the aggregate Stated Value (as defined in the Certificate of Designations) of the Preferred Shares has been paid in full to the Buyers or otherwise converted to Common Stock, then the Company may sell shares of Common Stock at a per share purchase price in excess of 130% of the exercise price of the Warrants). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase or other awards convertible, exercisable for or exchangeable for shares of Common Stock may be issued to any employee, officer officer, director or director other service provider for services provided to the Company and/or a Subsidiary in their capacity as such.
Appears in 2 contracts
Samples: Securities Purchase Agreement (PharmaCyte Biotech, Inc.), Securities Purchase Agreement (Synaptogenix, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 60th calendar day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 205% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; ( (iii) the Conversion Shares; provided, that the terms any shares of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on in connection with any bona fide strategic or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); commercial alliances, acquisitions, mergers, licensing arrangements, and strategic partnerships, provided, that (x) the terms primary purpose of such issuance is not to raise capital as reasonably determined, and (y) the purchaser or acquirer or recipient of the Permitted Subsequent Placement are not amendedsecurities in such issuance solely consists of either (I) the actual participants in such strategic or commercial alliance, modified strategic or changed on commercial licensing arrangement or after the date hereofstrategic or commercial partnership, (viII) shares the actual owners of Common Stock issued pursuant to acquisitions such assets or strategic transactionssecurities acquired in such acquisition or merger or (III) the stockholders, provided that such securities are issued as “restricted securities” (as defined partners, employees, consultants, officers, directors or members of the foregoing Persons, in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth hereineach case, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset asset, in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, and (1z) but the number or amount of securities issued to such Persons by the Company shall not include a transaction be disproportionate to each such Person’s actual participation in which (or fair market value of the Company is issuing contribution to) such strategic or commercial alliance or strategic or commercial partnership or ownership of such assets or securities primarily for to be acquired by the purpose of raising capital or to an entity whose primary business is investing in securities Company, as applicable, (iv) the Conversion Shares, and (2v) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein Warrant Shares (each of the foregoing in clauses (i) through (viivi), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 2 contracts
Samples: Securities Purchase Agreement (BIMI International Medical Inc.), Securities Purchase Agreement (BOQI International Medical, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) March 29, 2015 (the “Restricted Period”), unless otherwise consented to in writing by Buyer, neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity Common Stock or any security or any debt or other instrument convertible or exchangeable or exercisable into Common Stock or which constitutes (or would constitute but for lack of a fixed exercise or conversion or similar price or if it were not solely cash settled) a “derivative security” (as defined under the rules and regulations under Section 16 of the 1000 Xxx) or otherwise an equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), 1000 Xxx) or which does or would otherwise constitute any Option or Convertible Securities Security (as defined below), any debt, any preferred stock or any purchase rightsin the Warrants) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, the immediately preceding sentence in this Section 4(k4(i) shall not apply in respect of the issuance of (iA) shares of Common Stock or standard options to purchase Common Stock or other standard equity linked securities (e.g., stock appreciation rights) to directors, officers officers, employees or employees consultants of the Company in their capacity as such pursuant to an Approved Stock Share Plan (as defined below), ; provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances that are exercisable or vest during the Restricted Period (taking into account the shares of Common Stock issuable upon exercise of such optionsoptions and equity linked securities that are exercisable or vest during the Restricted Period, but not including shares issuable pursuant to Options or Convertible Securities outstanding as of the date hereof) and are issued after the date hereof pursuant to this clause (iA) do not, in the aggregate, exceed more than 20% (i) 1,000,000 shares of the Common Stock issued and outstanding immediately following the Spin-Off or standard options to purchase Common Stock or other standard equity linked securities (as defined in the Notee.g., stock appreciation rights) to directors, officers or employees and (3ii) 1,000,000 shares of Common Stock or standard options to purchase Common Stock or other standard equity linked securities (e.g., stock appreciation rights) to any person (provided that no more than 250,000 shall be issued as compensation for investor relation services); (2) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects the Buyer and (3) the issuance price of Common Stock or the exercise price of any such options is not lower than the higher of (i) $0.30 or (ii) the closing price of the BuyersCompany’s Common Stock on the OTC Bulletin Board on the trading day prior to the issuance of such Common Stock or option; (iiB) shares of Common Stock issued upon the conversion or exercise of Options or Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant hereof to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock extent issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none their terms as of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, ; (ivC) the Common Shares and the Warrants; (D) the Warrant Shares; provided(E) issuances of equity to a seller, that or in the terms case of a merger, the shareholders of the Warrants are not amendedtarget company in such merger, modified or changed on the officers or after the date hereofemployees thereof, (v) any Common Stock issued in each case in connection with a bona fide merger, business combination transaction or issuable by the Company on acquisition of stock or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms assets outside of the Permitted Subsequent Placement are not amendedordinary course; (F) a stock split or other subdivision or combination, modified or changed a stock dividend made to all holders of any Company equity on a pro rata basis; or after the date hereof, (viG) shares issuances of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement Convertible Securities in connection therewith during with strategic partnerships, joint ventures, licensing, acquisition of assets or technology, or similar arrangements approved by a majority of the prohibition period set forth hereindisinterested directors of the Company, and provided that any such issuance shall only be to a Person (or to the equityholders equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the Applicable earlier of (i) the 90th day after the Stockholder Approval Date or (provided that such period shall be extended by ii) the number of calendar days during such period and any extension thereof contemplated by this proviso on 35th day after which any Registration Statement the Note is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) no longer outstanding (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k4(n) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 20% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Note) and (3) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) shares of Series C Preferred Stock, which are convertible into Common Stock, issued or issuable pursuant to the Conversion SharesSecurities Purchase Agreement, dated November 6, 2023, by and between the Company and Axxx & Company, Inc., as amended; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Series D Preferred Stock issued pursuant to acquisitions or strategic transactionsthe Purchase Agreement, provided that such securities are issued as “restricted securities” (as defined in Rule 144) dated June 20, 2024, by and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of between the Company and shall provide to the Company additional benefits in addition to the investment of fundsOrion Equity Partners, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities LLC; and (2v) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”)Conversion Shares. “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof Public Company Date and ending on the date immediately following the Applicable 90th Trading Day after the later of (x) the Qualified Public Company Date (or, if any of the Underlying Securities are subject to a lockup in connection with the Public Company Date, the date of termination (or expiration, as applicable) of such lockup) and (y) the earlier to occur of (x) the effective date of a registration statement registering the resale by the Investors of the Underlying Securities and (y) the date the Securities are initially eligible to be resold by the Investors pursuant to Rule 144 (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement registration statement registering the resale of any Underlying Securities is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure (as defined in the Registration Rights Agreement) exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k4(w) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options equity awards to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 205% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, Shares and (v) any shares of Common Stock issued or issuable by the Company on in connection with any bona fide strategic or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); commercial alliances, acquisitions, mergers, licensing arrangements, and strategic partnerships, provided, that (x) the terms primary purpose of such issuance is not to raise capital as reasonably determined, and (y) the purchaser or acquirer or recipient of the Permitted Subsequent Placement are not amendedsecurities in such issuance solely consists of either (I) the actual participants in such strategic or commercial alliance, modified strategic or changed on commercial licensing arrangement or after the date hereofstrategic or commercial partnership, (viII) shares the actual owners of Common Stock issued pursuant to acquisitions such assets or strategic transactionssecurities acquired in such acquisition or merger or (III) the stockholders, provided that such securities are issued as “restricted securities” (as defined partners, employees, consultants, officers, directors or members of the foregoing Persons, in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth hereineach case, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset asset, in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, and (1z) but the number or amount of securities issued to such Persons by the Company shall not include a transaction be disproportionate to each such Person’s actual participation in which the Company is issuing securities primarily for the purpose (or fair market value of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.the
Appears in 1 contract
Samples: Securities Purchase Agreement (Heart Test Laboratories, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 90th Trading Day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers officers, consultants or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 205% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; and (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein Shares (each of the foregoing in clauses (i) through (viiiv), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer officer, consultant or director for services provided to the Company in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the ninety (90) day anniversary of the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any the Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure existsuse) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act)), any Convertible Securities (as defined below)Securities, any debt, any preferred stock or any purchase rights) rights (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (iA) shares of Common Stock or options to purchase Common Stock or other equity awards (but which shall not include any Options (as defined in the Warrants) (other than standard options to purchase Common Stock issued to directors, officers or employees of the Company or any of its Subsidiaries in their capacity as such, and warrants and standard options to purchase Common Stock issued to consultants or advisors providing services to the Company or any of its Subsidiaries in their capacity as such so long as such warrants do not contain any terms or conditions more favorable than any of the terms or conditions contained in the Warrants) or any Convertible Securities) issued to directors, officers, employees of, or consultants or advisors to, the Company or its Subsidiaries in their capacity as such pursuant to an Approved Stock Share Plan (as defined below) (it being expressly understood and agreed for all purposes of this Agreement that lawyers, law firms, accountants and accounting firms do not constitute consultants or advisors), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 20% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Note) and (3) the exercise price of any such options or such other equity awards is not lowered, none of such options or such other equity awards are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options or such other equity awards are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiB) shares of Common Stock issued upon the conversion conversion, exercise or exercise exchange of Convertible Securities (other than standard options to purchase Common Stock or such other equity awards issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance exchange (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance exchange (as the case may be) provisions of such Convertible Security that were in effect (and expressly set forth in such Convertible Security) on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance exchange price of any such Convertible Securities (other than standard options to purchase Common Stock or such other equity awards issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) is not lowered, none of such Convertible Securities are (other than standard options to purchase Common Stock or such other equity awards issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase, or which results in an increase in, the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock or such other equity awards issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any of the Buyers; (iiiC) the Conversion SharesWarrants; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (ivD) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, Shares and (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (viE) shares of Common Stock issued pursuant to acquisitions in connection with acquisitions, asset purchases, licenses, collaborations or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) transactions involving the Company and carry no registration rights that require or permit other Persons approved by the filing Company’s board of any registration statement in connection therewith during the prohibition period set forth herein, and directors; provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the current business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but and shall not include a transaction in which the Company is issuing securities Common Stock or any other security primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (iA) through (viiE), collectively the “Excluded Securities”). “Approved Stock Share Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and options to purchase Common Stock and other equity awards (but which shall not include any Options (other than standard options to purchase Common Stock issued to directors, officers or employees of the Company or any of its Subsidiaries in their capacity as such, and warrants and standard options to purchase Common Stock issued to consultants or advisors providing services to the Company or any of its Subsidiaries in their capacity as such so long as such warrants do not contain any terms or conditions more favorable than any of the terms or conditions contained in the Warrants) or any Convertible Securities) may be issued to any employee, officer or director of, or consultants or advisors to, the Company or any of its Subsidiaries for services provided to the Company or any of its Subsidiaries in their capacity as such. “Convertible Securities” means any capital stock, note, debenture or other security of the Company or any of its Subsidiaries that is, or may become, at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock, note, debenture or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Samples: Securities Purchase Agreement (Arch Therapeutics, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the Applicable Date ninetieth (provided that such period shall be extended by 90th) calendar day after the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) Closing (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall will, directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any equity purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k4(i) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 20% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Note) and (3) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the exercise or conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not loweredlowered at the Company’s discretion, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, Warrant Shares and (iv) the Warrant Shares; provided, that the terms any shares of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on in connection with strategic or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); commercial alliances, acquisitions, mergers, and strategic partnerships, provided, that (x) the terms primary purpose of such issuance is not to raise capital as reasonably determined, (y) the purchaser or acquirer of the Permitted Subsequent Placement are not amended, modified securities in such issuance solely consists of either (A) the actual participants in such strategic or changed on commercial alliance or after the date hereofstrategic or commercial partnership, (viB) shares the actual owners of Common Stock issued pursuant to acquisitions such assets or strategic transactionssecurities acquired in such acquisition or merger or (C) the stockholders, provided that such securities are issued as “restricted securities” (as defined partners or members of the foregoing Persons, in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth hereineach case, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset asset, in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, and (1z) but the number or amount of securities issued to such Persons by the Company shall not include a transaction be disproportionate to each such Person’s actual participation in which such strategic or commercial alliance or strategic or commercial partnership or ownership of such assets or securities to be acquired by the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do notCompany, in the aggregateas applicable, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (viiiv), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other equity security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries. Notwithstanding anything to the contrary contained in this Agreement, the Company may offer and sell its interest in any Subsidiary, and any Subsidiary may offer and sell its interest in any other Subsidiary, including through a merger with one or more third parties, and the same shall not be considered a Subsequent Placement and such interest, and any securities issued in connection with any such merger, shall be deemed Excluded Securities.
Appears in 1 contract
Samples: Securities Purchase Agreement (Pacific Ethanol, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following 90 days after the Applicable Closing Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Significant Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Securities Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k4(j) shall not apply in respect of the issuance of (i) up to 1,063,514 shares of Common Stock being issued on the date hereof to certain accredited investors pursuant to subscription agreements entered into with such accredited investors, (ii) shares of Common Stock issuable as payment of the Origination Fee, (iii) up to 200,000 shares of Common Stock issuable in connection with Permitted LOC Debt (as defined in the Notes), (iv) up to 142,710 shares of Common Stock (or warrants therefor) otherwise issuable in connection with the Closing; (v) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (equity compensation plan in effect as defined below)of the date of this Agreement, provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof and during the Restricted Period pursuant to this clause (iv) do not, in the aggregate, exceed more than 205% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (iivi) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are equity compensation plans covered by clause (iv) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance ; and (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiivii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified . “Convertible Securities” means any capital stock or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business other security of the Company or any of its Significant Subsidiaries that is at any time and shall provide under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to the Company additional benefits in addition to the investment of fundsacquire, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising any capital stock or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors other security of the Company prior to (including, without limitation, Common Stock) or subsequent to the date hereof pursuant to which shares any of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as suchits Significant Subsidiaries.
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 90th Trading Day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 205% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, and (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein Shares (each of the foregoing in clauses (i) through (viiiv), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 1 contract
Samples: Securities Purchase Agreement (ECD Automotive Design, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the Applicable ninety (90) day anniversary of the Initial Closing Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any the Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure existsuse) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below)Securities, any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k4(j) shall not apply in respect of (i) the issuance of (iA) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Share Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 20% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Note) and (3) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiB) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance conversion price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiiC) the Preferred Shares, (D) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (ivE) the Dividend Shares, (F) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, Shares and (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (viG) shares of Common Stock or Convertible Securities issued pursuant or issuable in connection with strategic or commercial alliances, acquisitions, mergers, and strategic partnerships, provided, that (x) the primary purpose of such issuance is not to acquisitions raise capital as determined in good faith by the board of directors of the Company, (y) the purchaser or acquirer of the securities in such issuance solely consists of either (I) the actual participants in such strategic or commercial alliance or strategic transactionsor commercial partnership, provided that (II) the actual owners of such assets or securities are issued as “restricted securities” acquired in such acquisition or merger or (as defined in Rule 144III) and carry no registration rights that require the stockholders, partners or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business members of the Company foregoing Persons and shall provide (z) the number or amount of securities issued to such Person by the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction be disproportionate to such Person’s actual participation in which such strategic or commercial alliance or strategic or commercial partnership or ownership of such assets or securities to be acquired by the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do notCompany, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein applicable (each of the foregoing in clauses (iA) through (viiG), collectively the “Excluded Securities”) and (ii) solely during the last thirty calendar days of the Restricted Period, shares of Common Stock or Convertible Securities issued or issuable in connection with pursuant to a bona fide retail firm commitment underwritten public offering with a nationally recognized underwriter which generates gross proceeds to the Company in excess of $30,000,000 (other than an “at-the-market offering” as defined in Rule 415(a)(4) under the 1933 Act, “equity lines”, “confidential market public offerings”, “unregistered direct offerings”, “wall-crossed offerings”, “pre-marketed offerings” and such other public offerings that are announced after confidential marketing to investors). “Approved Stock Share Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company or any of its Subsidiaries in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Samples: Securities Purchase Agreement (China Shen Zhou Mining & Resources, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the sixty (60) calendar day anniversary of the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (iA) shares of Common Stock or standard options to purchase Common Stock or other equity incentive awards to directors, officers or consultants, endorsers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (iA) do not, in the aggregate, exceed more than 2015% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not loweredlowered after issuance by subsequent amendment thereof, none of such options are amended subsequent to issuance to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are subsequent to issuance otherwise materially changed in any manner that adversely affects any of the Buyers; (iiB) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock or other equity incentive awards issued pursuant to an Approved Stock Plan that are covered by clause (A) above) issued prior to the date hereof, provided that the conversion price of any such Convertible Securities (other than options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (iA) above) issued prior to the date hereofis not lowered by subsequent amendment, provided that the conversion, exercise or other method none of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (iA) above) are subsequently amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (iA) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiiC) the Conversion Shares; , (D) the Interest Shares, (E) the Warrant Shares and (F) any securities issued in connection with strategic alliances, acquisitions, mergers, and strategic partnerships, provided, that (1) the terms primary purpose of such issuance is not to raise capital as determined in good faith by the Company’s board of directors, (2) the purchaser or acquirer of the Notes are not amended, modified securities in such issuance solely consists of either (x) the actual participants in such strategic alliance or changed on or after the date hereofstrategic partnership, (ivy) the Warrant Shares; providedactual owners of such assets or securities acquired in such acquisition or merger or (z) the stockholders, that the terms partners or members of the Warrants are not amended, modified foregoing Persons and (3) the number or changed on or after the date hereof, (v) any Common Stock amount of securities issued or issuable to such Person by the Company on shall not be disproportionate to either (x) the fair market value of such Person’s actual contribution to such strategic alliance or prior strategic partnership or (y) the proportional ownership of such assets or securities to be acquired by the Closing in a Permitted Subsequent Placement Company, as applicable (as defined in the Warrants); provided, that the terms each of the Permitted Subsequent Placement are not amendedforegoing in clauses (A) through (F), modified or changed on or after collectively the date hereof“Excluded Securities”), (viG) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off Permitted Purchase Money Warrants (as defined in the Notes) and (viiH) as set forth in Schedule 4(k), provided that such any other securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii)with strategic alliances, collectively the “Excluded Securities”)acquisitions, mergers, and strategic partnerships. “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard Stock, options to purchase Common Stock and other equity incentive awards may be issued to any employee, officer officer, director, consultant or director endorser for services provided to the Company in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Additional Issuance of Securities. So long as any Investor Buyer beneficially owns any SecuritiesDecember Notes, February Notes, Series A Notes or Series B Notes, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the later of (x) the six month anniversary of the Closing Date and (y) the 90th Trading Day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure existsexists or, if later, until such time after the Applicable Date as the Equity Conditions (as defined in the Notes) are initially satisfied in full) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafterthereafter and whether pursuant to a public or private offering) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers officers, consultants or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (including, without limitation, the Equity Incentive Plan, as defined belowamended on or prior to the date hereof), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 20% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Note) and (3x) the exercise price of any such options is not loweredlowered after issuance, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the BuyersInvestor Buyers and (y) such Options and Common Stock will be subject to a lock-up agreement, in form and substance reasonably satisfactory to the Required Holders, effective during the period commencing on the date of issuance through and including the thirtieth (30th) calendar day after only $560,000 or less in aggregate principal amount of Notes remain outstanding; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not loweredlowered after issuance, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Investor Buyers; (iii) the Conversion SharesPlacement Agent Warrants (including any Placement Agent warrants remaining to be issued pursuant to the February Securities Purchase Agreement); provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to Conversion Shares, (vi) the Closing in a Permitted Subsequent Placement Granted Unissued Shares, and (vii) the Helios Shares (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (viMoviePass SPA) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”) and (viii) at any time no December Notes, February Notes, or Series B Notes remain outstanding, shares of Common Stock and/or Convertible Securities issued in one or more Subsequent Placements, each at a New Issuance Price (as defined in the Warrant and as calculated in accordance with Section 2(b) of the Warrant) of at least $3.00 per share of Common Stock (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations and similar events). “Approved Stock Plan” means any employee benefit plan plan, contract or arrangement or employment or consulting agreement which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer officer, director or director consultant for services provided to the Company in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Samples: Securities Purchase Agreement (Helios & Matheson Analytics Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the ten (10) Trading Day (as defined in the Warrants) anniversary of the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any the Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure existsuse) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below)Securities, any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) (A) shares of Common Stock or standard options to purchase Common Stock to directorsdirectors (who are also employees of the Company), officers or employees of the Company in their capacity as such pursuant to an Approved Stock Share Plan (as defined below)) and to directors of the Company who are not also employees of the Company, in each case, in their capacity as such, provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (iA) do not, in the aggregate, exceed more than 20% 3,500,000 shares of the Common Stock issued (adjusted for stock splits, stock combinations and outstanding immediately following other similar transactions occurring after the Spin-Off (as defined in the Notedate of this Agreement) and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiB) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) issued prior to the date hereof, provided that the conversion, conversion or exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, conversion or exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, conversion or exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) is not lowered, none of such Convertible Securities are (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any of the Buyers; (iiiC) the Notes, (D) the Conversion Shares; provided, that (E) the terms of the Notes are not amended, modified or changed on or after the date hereof, Warrants; (ivF) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (viG) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, Qualified Secondary Registration Statement in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off Qualified Secondary Offering (as defined in the Notes) (such shares of Common Stock so issued pursuant to the Qualified Secondary Registration Statement in the Qualified Secondary Offering are referred to herein as the “Qualified Secondary Shares”); (H) standard and customary warrants to purchase Common Stock pursuant to the Qualified Secondary Registration Statement in the Qualified Secondary Offering (vii) such warrants so issued pursuant to the Qualified Secondary Registration Statement in the Qualified Secondary Offering are referred to herein as set forth in Schedule 4(kthe “Qualified Secondary Warrants”), provided that the exercise of any such securities Qualified Secondary Warrant is made solely pursuant to the exercise provisions of such Qualified Secondary Warrant that were in effect on the date of initial issuance thereof, the exercise price of any such Qualified Secondary Warrants is not lowered (including, without limitation, by giving effect to any anti-dilution adjustment provisions contained therein), none of such Qualified Secondary Warrants are (nor is any provision of any such Qualified Secondary Warrants) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Qualified Secondary Warrants are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any of the Buyers; (I) shares of Common Stock upon the exercise of Qualified Secondary Warrants, provided that the exercise of any such Qualified Secondary Warrant is made solely pursuant to the exercise provisions of such Qualified Secondary Warrant that were in effect on the date of initial issuance thereof, the exercise price of any such Qualified Secondary Warrants is not lowered (including, without limitation, by giving effect to any anti-dilution adjustment provisions contained therein), none of such Qualified Secondary Warrants are (nor is any provision of any such Qualified Secondary Warrants) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Qualified Secondary Warrants are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any of the Buyers; (J) immediately following the consummation of the Qualified Secondary Offering, shares of Common Stock to the holders of the Bxxxxxx Notes upon conversion or exchange of 50% of the aggregate amount then outstanding under all the Bxxxxxx Notes (as defined below) (such shares of Common Stock so issued to the holders of the Bxxxxxx Notes upon such conversion or exchange are referred to herein as the “Bxxxxxx Shares”), provided that (I) such conversion or exchange for Bxxxxxx Shares shall be on the same terms and conditions as the terms and conditions set forth in Schedule 4(k)(iSection 32 of the Notes as if each holder of a Bxxxxxx Note was then a holder of a Note in the original principal amount equal to 50% of the amount then outstanding under such holder’s Bxxxxxx Note and (II) none of the terms or conditions of any of the Bxxxxxx Notes shall be (nor shall any provision of any of the Bxxxxxx Notes be) amended, changed or waived in any manner (whether by the Company or the holder thereof)); (K) if Qualified Secondary Warrants and Bxxxxxx Shares are issued, then, immediately following the consummation of the Qualified Secondary Offering, standard and customary warrants to purchase Common Stock to the holders of the Bxxxxxx Notes having the same terms and conditions as the Qualified Secondary Warrants and on the same terms and conditions as the terms and conditions set forth in Section 32 of the Notes as if each holder of a Bxxxxxx Note was then a holder of a Note in the original principal amount equal to 50% of the amount then outstanding under such holder’s Bxxxxxx Note (such warrants so issued to the holders of the Bxxxxxx Notes pursuant to this clause (K) are referred to herein as the “Bxxxxxx Warrants”); and (L) if any Bxxxxxx Warrants are so issued as “restricted securities” pursuant to clause (as defined in Rule 144K) and carry no registration rights above, shares of Common Stock upon the exercise of Bxxxxxx Warrants, provided that require or permit the filing exercise of any registration statement such Bxxxxxx Warrant is made solely pursuant to the exercise provisions of such Bxxxxxx Warrant that were in connection therewith during effect on the prohibition period set forth herein date of initial issuance thereof, the exercise price of any such Bxxxxxx Warrants is not lowered (including, without limitation, by giving effect to any anti-dilution adjustment provisions contained therein), none of such Bxxxxxx Warrants are (nor is any provision of any such Bxxxxxx Warrants) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Bxxxxxx Warrants are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any of the Buyers (each of the foregoing in clauses (iA) through (viiL), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved ) or (ii) (ii) up to $2,000,000 of units issued by the board of directors of Company during the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.Restricted Period having a price
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 60th Trading Day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 205% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, Shares and (v) any shares of Common Stock issued or issuable by the Company on in connection with any bona fide strategic or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); commercial alliances, acquisitions, mergers, licensing arrangements, and strategic partnerships, provided, that (A) the terms primary purpose of such issuance is not to raise capital as reasonably determined, and (B) the purchaser or acquirer or recipient of the Permitted Subsequent Placement are not amendedsecurities in such issuance solely consists of either (I) the actual participants in such strategic or commercial alliance, modified strategic or changed on commercial licensing arrangement or after the date hereofstrategic or commercial partnership, (viII) shares the actual owners of Common Stock issued pursuant to acquisitions such assets or strategic transactionssecurities acquired in such acquisition or merger or (III) the stockholders, provided that such securities are issued as “restricted securities” (as defined partners, employees, consultants, officers, directors or members of the foregoing Persons, in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth hereineach case, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset asset, in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, and (1IV) but the number or amount of securities issued to such Persons by the Company shall not include a transaction be disproportionate to each such Person’s actual participation in which the Company is issuing securities primarily for the purpose of raising capital (or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% fair market value of the Common Stock issued and outstanding immediately following contribution to) such strategic or commercial alliance or strategic or commercial partnership or ownership of such assets or securities to be acquired by the Spin-Off (Company, as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein applicable (each of the foregoing in clauses (i) through (viiiv), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 1 contract
Samples: Securities Purchase Agreement (Ocean Biomedical, Inc.)
Additional Issuance of Securities. So long as any Investor Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the WarrantsNotes. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 90th Trading Day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure existsexists or, if later, until such time after the Applicable Date as the Equity Conditions (as defined in the Notes) are initially satisfied in full) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafterthereafter and whether pursuant to a public or private offering) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers officers, consultants or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (including, without limitation, the Equity Incentive Plan, as defined belowrequired to be amended pursuant to Section 4.19 of the Agreement and Plan of Merger, dated as of July 7, 2016, by and among the Company, Zone Acquisition Inc. and Zone, as amended by Amendment Xx. 0 xxxxxxx xxxxx Xxxxxx 00, 0000 (xx in effect on the date immediately prior to the date of this Agreement, the “Merger Agreement”), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 20% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Note) and (3) the exercise price of any such options is not loweredlowered after issuance, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Investor Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not loweredlowered after issuance, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Investor Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, Placement Agent Warrants (iv) the Warrant Conversion Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement Merger Consideration (as defined in the WarrantsMerger Agreement); provided, provided that none of the terms or conditions of the Permitted Subsequent Placement Merger Agreement are not amended, modified or materially changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided in any manner that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of adversely affects any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein Investor Buyers (each of the foregoing in clauses (i) through (viiv), collectively the “Excluded Securities”) and (vi) one or more Subsequent Placements for aggregate gross proceeds up to Ten Million Dollars ($10,000,000) (a “Capital Raising Transaction”), including, without limitation, the exercise or conversion of any Convertible Securities issued pursuant to such Capital Raising Transaction, provided that (x) the minimum price per share of Common Stock issued (or issuable upon conversion or exercise of any Convertible Securities, as applicable) in such Subsequent Placement shall be at least $4.00 (as adjusted for stock splits, stock dividends, recapitalizations and similar events) and (y) the conversion or exercise price of any such Convertible Securities is not lowered after issuance, none of such Convertible Securities are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities are otherwise materially changed in any manner that adversely affects any of the Investor Buyers. “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer officer, director or director consultant for services provided to the Company in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Samples: Securities Purchase Agreement (Helios & Matheson Analytics Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes Preferred Shares (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes Certificate of Designations or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the later of (x) the Public Company Date and (y) the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 2015% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) Closing Date and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; , (iv) the Warrant Shares, (v) any issuances of securities of the Company in accordance with the Asset Purchase Agreement (each of the foregoing in clauses (i) through (v), collectively the “Excluded Securities”), and (vi) subject to the consent of the Required Holders, not to be unreasonably withheld, Convertible Securities in an aggregate amount not to exceed $10 million, subject to a lock-up by each holder thereof for a period of twelve (12) months following the Restricted Period, a fixed conversion price of no less than 90% of the initial Conversion Price (as defined in the Certificate of Designations), including no right, directly or indirectly, to convert, exercise or exchange such Convertible Securities into any other securities of the Company in a Variable Rate Transaction (as defined below), and issued pursuant to transaction documents, in form and substance reasonably satisfactory to the Required Holders, with terms and conditions, as applicable, no more favorable to such holders thereof than the terms and conditions set forth in the Transaction Documents, provided, that the terms of the Notes such Convertible Securities are not amended, modified or changed on or after the date hereof, of issuance thereof (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a “Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded SecuritiesFinancing”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Samples: Securities Purchase Agreement (Allarity Therapeutics, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any SecuritiesDuring the period commencing on the date hereof and ending on the later of (x) the date no Notes remain outstanding and (y) the Additional Optional Closing Expiration Date, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period (x) commencing on the date hereof and ending on the date immediately following the 60th Trading Day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) and (the y) each trailing 60 Trading Day period commencing on, and including, each Trading Day immediately following a Closing Date hereunder (each, a “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock shares or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock Ordinary Shares or standard options to purchase Common Stock Ordinary Shares to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Share Plan (as defined below)) or such agreements with such directors, officers or employees of the Company existing as of the date of this Agreement, provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock Ordinary Shares issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 205% of the Common Stock Ordinary Shares issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock Ordinary Shares issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock Ordinary Shares issued pursuant to an Approved Stock Share Plan or such agreements with such directors, officers or employees of the Company existing as of the date of this Agreement that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock Ordinary Shares issued pursuant to an Approved Stock Share Plan or such agreements with such directors, officers or employees of the Company existing as of the date of this Agreement that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock Ordinary Shares issued pursuant to an Approved Stock Share Plan or such agreements with such directors, officers or employees of the Company existing as of the date of this Agreement that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock Ordinary Shares issued pursuant to an Approved Stock Share Plan or such agreements with such directors, officers or employees of the Company existing as of the date of this Agreement that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) securities issued in connection with any Common Stock issued bona fide strategic or issuable commercial alliances, acquisitions, mergers, licensing arrangements, strategic transactions and strategic partnerships (including, without limitation, joint ventures, marketing or distribution arrangements, collaboration agreements or intellectual property license agreements) approved by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms majority of the Permitted Subsequent Placement are not amended, modified or changed on or after disinterested directors of the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactionsCompany, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth hereinRestricted Period, provided, further, that (w) the primary purpose of such issuance is not to raise capital as reasonably determined by a majority of the disinterested directors of the Company, and provided that any (x) the purchaser or acquirer or recipient of the securities in such issuance shall only be to a Person solely consists of either (I) the actual participants in such strategic or to commercial alliance, strategic or commercial licensing arrangement or strategic or commercial partnership, (II) the equityholders actual owners of a Personsuch assets or securities acquired in such acquisition or merger or (III) the shareholders, partners, employees, consultants, officers, directors or members of the foregoing Persons, in each case, which is, itself or through its subsidiaries, an operating company or an owner of an asset asset, in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1y) but the number or amount of securities issued to such Persons by the Company shall not include a transaction be disproportionate to each such Person’s actual participation in which (or fair market value of the Company is issuing contribution to) such strategic or commercial alliance or strategic or commercial partnership or ownership of such assets or securities primarily for to be acquired by the purpose of raising capital or to an entity whose primary business is investing in securities Company, as applicable and (2z) all such issuances after the date hereof aggregate number of Ordinary Shares issued (or issuable upon conversion or exercise of Convertible Securities or Options, as applicable) pursuant to this clause (vi) do notv), in the aggregate, shall not exceed more than 10% thirty percent (30%) of the Common Stock issued and total number of outstanding Ordinary Shares immediately following the Spin-Off (as defined in issuance and sale of the Notes) Securities pursuant hereto, and (viivi) as set forth the issuance by the Company of 2,812,833 Ordinary Shares pursuant to securities purchase agreements entered into with investors on November 7, 2023 and November 9, 2023, respectively, for gross proceeds of $3,994,222, in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no reliance upon an exemption from the registration rights that require or permit requirements of the filing Section 5 of any registration statement in connection therewith during the prohibition period set forth herein 1933 Act (each of the foregoing in clauses (i) through (viivi), collectively the “Excluded Securities”). “Approved Stock Share Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock Ordinary Shares and standard options to purchase Common Stock Ordinary Shares may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes or Preferred Shares (in each case, other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Certificate of Designations, the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following (x) with respect to clause (i) below, the 90th Trading Day or (y) with respect to clauses (ii) to (vii) below, the 30th Trading Day, in each case, after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (as applicable, the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the applicable Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k4(n) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options or restricted stock units to purchase Common Stock issued to directors, officers or employees of the Company for services rendered to the Company in their capacity as such pursuant to an Approved Stock Plan (as defined belowabove), provided that (1A) such securities are issued as “(x) in any twelve month period commencing on the Closing Date, the Company may issue no more than 500,000 restricted securities” stock units, (as defined in Rule 144y) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth hereincommencing on the Closing Date and ending on the first anniversary of the Closing Date, all shares of Common Stock and options covered by this clause (2i)(A)(y) all must be unvested and such issuances aggregate number of shares of Common Stock (taking into account including the shares of Common Stock issuable upon exercise of any such options) after the date hereof pursuant to covered by this clause (ii)(A)(y) do not, in the aggregate, may not exceed more than 2010% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (3z) in any twelve month period commencing on the first anniversary of the Closing Date, such aggregate number of shares of Common Stock (including the shares of Common Stock issuable upon exercise of any such options) covered by this clause (i)(A)(z) may not exceed 5% of the Common Stock issued and outstanding on the first Trading Day in such twelve month period and (B) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement (including pursuant to all adjustment provisions of such Convertible Securities in effect prior to the date of this Agreement), the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not loweredlowered (other than pursuant to adjustment provisions of such Convertible Securities in effect prior to the date of this Agreement), none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Note Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Preferred Conversion Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereofWarrant Shares, (vi) up to an aggregate of $4,000,000 of unregistered shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.a
Appears in 1 contract
Samples: Securities Purchase Agreement (Ascent Solar Technologies, Inc.)
Additional Issuance of Securities. (i) So long as any Buyer beneficially owns any SecuritiesConvertible Notes remain outstanding, the Company will not, without the prior written consent of each of the Required HoldersBuyers, issue any Convertible Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or Convertible Notes. Except as otherwise permitted under Sections 4(h)(ii) and 4(h)(iii), the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following (x) the Applicable Date (provided that such period shall be extended by 30th calendar day after the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”)Closing Date, neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) and (y) the 30th calendar day after the Closing Date, neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity-linked security (or any Convertible Securities) (each such period, a “Restricted Period”); any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) in clause (x) or (y) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 20% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Note) and (3) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required HoldersHolders (as defined below), issue any Notes Preferred Shares (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the WarrantsCertificate of Designation. The Company agrees that for the period commencing on the date hereof and ending on the date occurring 30 days immediately following the Applicable Date initial date of the effectiveness of each Registration Statement covering the resale of all of the Securities (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) and during any Alternate Conversion Measuring Period (as defined in the Certificate of Designation) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 20% of the Common Stock issued and outstanding immediately following the Spin-Off Excluded Securities (as defined in the Note) and (3) the exercise price Certificate of Designation). “Convertible Securities” means any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise capital stock or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business security of the Company or any of its Subsidiaries that is at any time and shall provide under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to the Company additional benefits in addition to the investment of fundsacquire, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising any capital stock or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors other security of the Company prior to (including, without limitation, Common Stock) or subsequent to the date hereof pursuant to which shares any of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as suchits Subsidiaries.
Appears in 1 contract
Samples: Securities Purchase Agreement (Asset Entities Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the sixty (60) day anniversary of the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any the Registration Statement (as defined in the Registration Rights Agreement) is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the use)(the “Restricted Period”), neither the Company nor any of its Subsidiaries subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Securities Act)), any Convertible Securities (as defined below)Securities, any debt, any preferred stock or any purchase rights) rights (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k12(a) shall not apply in respect of the issuance of (iA) shares of Common Stock or standard options to purchase Common Stock or other equity awards issued to directors, officers officers, employees of, or employees of consultants or advisors to, the Company or its subsidiaries in their capacity as such pursuant to an Approved Stock Share Plan (as defined belowit being expressly understood and agreed for all purposes of this Subscription Agreement that lawyers, law firms, accountants and accounting firms do not constitute consultants or advisors), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 20% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Note) and (3) the exercise price of any such options or such other equity awards is not lowered, none of such options or such other equity awards are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options or such other equity awards are otherwise materially changed in any manner that adversely affects the Purchaser or any of other Person subscribing for Units in the BuyersOffering (collectively, the “Investors” and each such Person, an “Investor”); (iiB) shares of Common Stock issued upon the conversion conversion, exercise or exercise exchange of Convertible Securities (other than standard options to purchase Common Stock or such other equity awards issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance exchange (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance exchange (as the case may be) provisions of such Convertible Security that were in effect (and expressly set forth in such Convertible Security) on the date immediately prior to the date of this Subscription Agreement, the conversion, exercise or issuance exchange price of any such Convertible Securities (other than standard options to purchase Common Stock or such other equity awards issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) is not lowered, none of such Convertible Securities are (other than standard options to purchase Common Stock or such other equity awards issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) aboveabove)(nor is any provision of any such Convertible Securities) are amended or waived in any manner (whether by the Company or the holder thereof) to increase, or which results in an increase in, the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock or such other equity awards issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any of the BuyersPurchasers; (iiiC) the Conversion SharesWarrants; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (ivD) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (viE) shares of Common Stock issued pursuant to acquisitions in connection with acquisitions, asset purchases, licenses, collaborations or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) transactions involving the Company and carry no registration rights that require or permit other Persons approved by the filing Company’s board of any registration statement in connection therewith during the prohibition period set forth herein, and directors; provided that any such issuance shall only be to Strategic Entity and shall provide to the Company additional benefits in addition to the investment of funds, and shall not include a transaction in which the Company is issuing Common Stock or any other security primarily for the purpose of raising capital or to an entity whose primary business is investing in securities; and (F) shares of Common Stock issued to a Stategic Entity; provided that the Company’s board of directors reasonable determines that such issuance shall provide to the Company additional benefits in addition to the investment of funds (each of the foregoing in clauses (A) through (F), collectively the “Excluded Securities”). For purposes of this Subscription Agreement, (1) “Applicable Date” means the first date on which the resale by the Investors of all Registrable Securities (as defined in the Registration Rights Agreement) is covered by one or more effective Registration Statements (and each prospectus contained therein is available for use on such date); (2) “Approved Share Plan” means any employee benefit plan has been approved by the board of directors of the Company pursuant to which shares of Common Stock and options to purchase Common Stock and other equity awards may be issued to any employee, officer or director of, or consultants or advisors to, the Company or any of its subsidiaries for services provided to the Company or any of its subsidiaries in their capacity as such including, but not limited to, the Company’s 2013 Stock Incentive Plan; (3) “Convertible Securities” means any capital stock, note, debenture or other security of the Company or any of its subsidiaries that is, or may become, at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock, note, debenture or other security of the Company (including, without limitation, Common Stock) or any of its subsidiaries; and (4) “Strategic Entity” means a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the current business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as suchCompany.
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 90th Trading Day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 2010% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms shares of the Notes are not amended, modified Common Stock issued or changed on or after the date hereofissuable pursuant to a Permitted Equity Line and a Permitted ATM, (iv) the Warrant Conversion Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, and (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein Warrant Shares (each of the foregoing in clauses (i) through (viiv), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 1 contract
Samples: Securities Purchase Agreement (BitNile Metaverse, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 90th Trading Day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to consultants, attorneys, accountants, directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 205% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (iA) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiiC) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (ivD) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, Shares and (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (viE) shares of Common Stock issued pursuant or issuable in connection with strategic alliances and strategic partnerships, provided, that (x) the primary purpose of such issuance is not to acquisitions raise capital as determined in good faith by the Required Holders, (y) the purchaser or acquirer of the securities in such issuance solely consists of either (I) the actual operating participants in such strategic alliance or strategic transactionspartnership or (II) the stockholders, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require partners or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business members of the Company foregoing Persons and shall provide (z) the number or amount of securities issued to such Person by the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction be disproportionate to such Person’s actual participation in which the Company is issuing securities primarily for the purpose of raising capital such strategic alliance or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do notstrategic partnership, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein applicable (each of the foregoing in clauses (iA) through (viiE), collectively the “Excluded Securities”)) and (F) unregistered shares of Common Stock and warrants to purchase Common Stock issued by the Company in a private placement consummated on or prior to the first anniversary of the Closing Date at a fixed price per share of Common Stock and warrant to purchase Common Stock. “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any consultant, attorney, accountant, employee, officer or director for services provided to the Company in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Samples: Securities Purchase Agreement (Infinity Energy Resources, Inc)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the Applicable thirty (30) Trading Day anniversary of the Closing Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any the Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure existsuse) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, the immediately preceding sentence in this Section 4(k4(j) shall not apply in respect of the issuance of (iA) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Share Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (iA) do not, in the aggregate, exceed more than 20% 1,352,002 shares of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in adjusted for stock splits, stock combinations and other similar transactions occurring after the Notedate hereof) and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiB) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance conversion price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiiC) the Conversion Common Shares; provided, that and (D) the terms of the Notes are not amended, modified or changed on or after the date hereof, Warrants; and (ivE) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein Shares (each of the foregoing in clauses (iA) through (viiE), collectively the “Excluded Securities”). “Approved Stock Share Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following 30th calendar day after the Applicable Closing Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), 1000 Xxx) or any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during in the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”January SPA). Notwithstanding the foregoing, this Section 4(k4(b)(xix) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined belowin the January SPA), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 2010% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the BuyersHolder; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the BuyersHolder; (iii) the Conversion Shares; providedShares (as defined in the January SPA), that the terms of the Notes are not amended, modified or changed on or after the date hereof, and (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement Shares (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144January SPA) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein June Warrant Shares (each of the foregoing in clauses (i) through (viiiv), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the later to occur of (x) the 60th calendar day after the Closing Date any (y) the thirtieth calendar day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries Company Subsidiary shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k5(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 2010% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, and (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein Shares (each of the foregoing in clauses (i) through (viiiv), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 1 contract
Samples: Securities Purchase Agreement (Vinco Ventures, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 90th Trading Day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2A) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such optionsoptions and restricted stock units) after the date hereof pursuant to this clause (i) together with any issuance of Common Stock pursuant to clause (iv) below do not, in the aggregate, exceed more than 205% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (3B) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement (including pursuant to all adjustment provisions of such Convertible Securities in effect prior to the date of this Agreement), the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not loweredlowered (other than pursuant to adjustment provisions of such Convertible Securities in effect prior to the date of this Agreement), none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms shares of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock or Convertible Securities issued or issuable by the Company on pursuant to a bona fide firm commitment underwritten public offering, in which all or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms part of the Permitted Subsequent Placement proceeds of which are not amended, modified or changed on or after the date hereof, used to redeem all Notes then outstanding in full; (viiv) shares of Common Stock or Convertible Securities issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement issuable in connection therewith during the prohibition period set forth hereinwith strategic alliances, acquisitions, mergers, and provided strategic partnerships, provided, that any (A) the primary purpose of such issuance shall only be is not to a Person raise capital, (B) the purchasers or to acquirers of the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset securities in a business synergistic with the business such issuance does not include any affiliate of the Company or any of its Subsidiaries and shall provide solely consists of either (x) the actual participants in such strategic alliance or strategic partnership, (y) the actual owners of such assets or securities acquired in such acquisition or merger or (z) the stockholders, partners or members of the foregoing Persons, (C) the acquirers of such Common Stock and/or Convertible Securities, as applicable, in such offering enter into a six month lock-up agreement in form and substance reasonably satisfactory to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities Required Holders and (2D) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options and restricted stock units) after the date hereof pursuant to this clause (viiv) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of together with any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares issuance of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.Stock
Appears in 1 contract
Samples: Securities Purchase Agreement (Ascent Solar Technologies, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k4(n) shall not apply in respect of the issuance of (iA) shares of Common Stock or standard options to purchase Common Stock to directors, officers officers, consultants (it being expressly understood and agreed that lawyers, law firms, accountants, accounting firms and other similar professional advisors and professional advisory firms are not consultants) or employees of the Company or any of its Subsidiaries in their capacity as such pursuant to an Approved Stock Share Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (iA) do not, in the aggregate, exceed more than 20% 1,000,000 shares of the Common Stock issued (adjusted for stock splits, stock combinations and outstanding immediately following other similar transactions occurring after the Spin-Off (as defined in the Notedate of this Agreement) and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiB) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) issued prior to the date hereof, provided that the conversion, conversion or exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiiC) the Pre-Installment Conversion SharesShares (as defined in the Notes); provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (ivD) the Warrant Shares; provided(E) the Conversion Shares (other than those that constitute Pre-Installment Conversion Shares), that (F) the terms Interest Shares; and (G) capital stock or Convertible Securities issued as consideration for an acquisition or strategic transaction approved by a majority of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms disinterested directors of the Permitted Subsequent Placement are not amendedCompany, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not not, for the purposes of this clause (G), include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (iA) through (vii), G) collectively the “Excluded Securities”). “Approved Stock Share Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer officer, consultants or director for services provided to the Company or any of its Subsidiaries in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following 30th calendar day after the Applicable Closing Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), 1000 Xxx) or any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during in the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”July SPA). Notwithstanding the foregoing, this Section 4(k4(b)(xix) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined belowin the July SPA), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 2010% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the BuyersHolder; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the BuyersHolder; (iii) the Conversion Shares; providedShares (as defined in the July SPA), that the terms of the Notes are not amended, modified or changed on or after the date hereof, and (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement Shares (as defined in the WarrantsJuly SPA); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” August Warrant Shares (as defined in Rule 144that certain Warrant Exercise Agreement, dated as of August 18, 2021, (the “August WEA”)) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein September Warrant Shares (each of the foregoing in clauses (i) through (viiiv), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 1 contract
Additional Issuance of Securities. So long as any Investor Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the WarrantsNotes. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 90th Trading Day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure existsexists or, if later, until such time after the Applicable Date as the Equity Conditions (as defined in the Notes) are initially satisfied in full) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafterthereafter and whether pursuant to a public or private offering) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers officers, consultants or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (including, without limitation, the Equity Incentive Plan, as defined belowamended on or prior to the date hereof), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 20% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Note) and (3x) the exercise price of any such options is not loweredlowered after issuance, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the BuyersInvestor Buyers and (y) such Options and Common Stock will be subject to a lock-up agreement, in form and substance reasonably satisfactory to the Required Holders, effective during the period commencing on the date of issuance through and including the thirtieth (30th) calendar day after only $560,000 or less in aggregate principal amount of Notes remain outstanding; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not loweredlowered after issuance, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Investor Buyers; (iii) the Conversion Shares; providedPlacement Agent Warrants (including any Placement Agent warrants remaining to be issued pursuant to the December Securities Purchase Agreement), that the terms of the Notes are not amended, modified or changed on or after the date hereof, and (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein Conversion Shares (each of the foregoing in clauses (i) through (viiiv), collectively the “Excluded Securities”) and (v) one or more Subsequent Placements of securities of the Company (a “Capital Raising Transaction”), including, without limitation, the exercise or conversion of any Convertible Securities issued pursuant to such Capital Raising Transaction, provided that, until such date the aggregate principal amount of the December Notes then outstanding is less than or equal to $1.9 million, (A) during the period commencing on Closing Date through and including fifth (5th) Trading Day after the Closing Date, no Capital Raising Transaction shall be consummated or otherwise publicly announced and no prospectus or prospectus supplement in respect of a Capital Raising Transaction shall be filed with the SEC, (B) during the period commencing on the sixth (6th) Trading Day after the Closing Date the “First Capital Raising Availability Date”) until the forty-fifth (45th) calendar day after the First Capital Raising Availability Date, such Capital Raising Transaction has a minimum price per share of Common Stock issued (or issuable upon conversion or exercise of any Convertible Securities, as applicable) in such Capital Raising Transaction of at least $6.00 (as adjusted for stock splits, stock dividends, recapitalizations and similar events), (C) during the period commencing on the forty-sixth (46th) calendar day after the First Capital Raising Availability Date (the “Second Capital Raising Availability Date”) and through and including the forty-fifth (45th) calendar day after the Second Capital Raising Availability Date, such Capital Raising Transaction has a minimum price per share of Common Stock issued (or issuable upon conversion or exercise of any Convertible Securities, as applicable) in such Capital Raising Transaction of at least $5.00 (as adjusted for stock splits, stock dividends, recapitalizations and similar events), (D) during the period commencing on the forty-sixth (46th) calendar day after the Second Capital Raising Availability Date (the “Third Capital Raising Availability Date”) until such time as no Initial Notes or December Notes remain outstanding, such Capital Raising Transaction has a minimum price per share of Common Stock issued (or issuable upon conversion or exercise of any Convertible Securities, as applicable) in such Capital Raising Transaction of the higher of (x) the Conversion Price (as defined in the Initial Notes) and (y) the Conversion Price (as defined in the December Notes) then in effect and (E) the conversion or exercise price of any such Convertible Securities is not lowered after issuance, none of such Convertible Securities are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities are otherwise materially changed in any manner that adversely affects any of the Investor Buyers. “Approved Stock Plan” means any employee benefit plan plan, contract or arrangement or employment or consulting agreement which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer officer, director or director consultant for services provided to the Company in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Samples: Securities Purchase Agreement (Helios & Matheson Analytics Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will shall not, without the prior written consent of the Required HoldersHolders (as defined below), issue any Notes (other than to the Buyers as contemplated hereby) ), and the Company shall not issue any other securities that would cause a breach or default under the Notes or Notes. Unless otherwise agreed upon in writing by the Warrants. The Company agrees that Required Holders, for the period commencing on the date hereof Subscription Date and ending on the date immediately following the Applicable thirtieth (30th) Trading Day after the Closing Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any the Registration Statement is not effective or any prospectus Prospectus contained therein is not available for use or any Current Public Information Failure existswith respect to the resale of the Securities) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option Option or right to purchase, or otherwise dispose of (of, or announce any issuance, offer, sale, grant of any option Option or right to purchase purchase, or other disposition of) , any equity security or any equity-linked or related security (security, including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Securities Act), or any stock or other security (other than Options) that is, at any time and under any circumstances, directly or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any shares of Common Stock (collectively, “Convertible Securities (as defined belowSecurities”), any debt, any preferred stock or stock, any purchase rights) rights (any such issuance, offer, sale, grant, disposition or announcement (announcement, whether occurring during the Restricted Period or at any time thereafter, but in any event excluding the Permitted Equity Line (as defined below) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options Options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2a) all such issuances (taking into account the shares of Common Stock issuable upon the exercise of such options) Options after the date hereof Subscription Date pursuant to this clause (i) do not, in the aggregate, exceed more than 20% ten percent (10.0%) of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) Subscription Date, and (3B) the exercise price of any such options Options is not lowered, none of such options Options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options Options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities or Options (other than standard options Options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereofSubscription Date, provided that the conversion, exercise exercise, or other method of issuance (as the case may be) of any such Convertible Security or Option is made solely pursuant to the conversion, exercise exercise, or other method of issuance (as the case may be) provisions of such Convertible Security or Option that were in effect on the date immediately prior to the date of this AgreementSubscription Date, the conversion, exercise exercise, or issuance price of any such Convertible Securities or Options (other than standard options Options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities or Options (other than standard options Options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder thereunder, and none of the terms or conditions of any such Convertible Securities or Options (other than standard options Options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) securities issued pursuant to acquisitions, divestitures, licenses, partnerships, collaborations, or strategic transactions approved by the Warrant Shares; provided, that the terms Company’s board of directors or a majority of the Warrants are not amendedmembers of a committee of directors established for such purpose, modified which acquisitions, divestitures, licenses, partnerships, collaborations, or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in strategic transactions can have a Permitted Subsequent Placement Variable Rate Transaction (as defined in the Warrants); providedbelow) component, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities securities; and (2v) all any issuances or sales of Common Stock made on or following the Subscription Date pursuant to the terms of that certain Common Stock Purchase Agreement, by and between the Company and Tumim Stone Capital, LLC, to be entered into by such issuances after parties as of or subsequent to the date hereof pursuant to this clause (vithe “Permitted Equity Line”) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (viiv), collectively the “Excluded Securities”). “Approved Stock Plan” means any stock incentive plan or other employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to Subscription Date, which shares provides for the grant of Common Stock and standard options to purchase Common Stock may be issued equity awards to any employee, officer or director for services provided to the Company in their capacity as such. “Variable Rate Transaction” means a transaction in which the Company (A) issues or sells any Convertible Securities or Options either (1) at a conversion, exercise, or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such Convertible Securities or Options, or (2) with a conversion, exercise, or exchange price that is subject to being reset at some future date after the initial issuance of such Convertible Securities or Options or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock, other than pursuant to a customary anti-dilution provision, or (B) enters into any agreement (including, without limitation, any equity line of credit) whereby the Company may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights), provided, however, that Variable Rate Transaction shall exclude (i) the Permitted Equity Line, and (ii) any “at-the-market” offerings to the extent the gross proceeds to the Company from such offerings do not exceed an aggregate of $10,000,000. Each Buyer shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy shall be in addition to any right to collect damages.
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, neither the Company will notnor any of its Subsidiaries will, directly or indirectly, without the prior written consent of Buyers holding a majority in aggregate principal amount of the Required HoldersDebentures then outstanding, (i) issue any Notes Debentures (other than to the Buyers as contemplated herebyhereby or in the Debentures), (ii) and the Company shall not issue any other securities that would cause a breach or default under the Notes Debentures or the Warrants. The Company agrees that for Warrants or (iii) during the period commencing on the date hereof and ending on the date immediately following the ninety (90) calendar day anniversary of the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any the Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure existsuse) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below)Securities, any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (iA) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (iA) do not, in the aggregate, exceed more than 205% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiB) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (iA) above) issued prior to the date hereof, provided that the conversion, conversion or exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, conversion or exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, conversion or exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.Stock
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes Preferred Shares (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes Convertible Preferred Certificate of Designations or the Common Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 90th Trading Day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock Stock, preferred stock, or standard options to purchase Common Stock to directors, officers or employees of the Company for services rendered in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 205% of the Common Stock issued and outstanding immediately following after time of consummation of the Spin-Off Harp Transaction (as defined in the NoteConvertible Preferred Certificate of Designations) (or, if the Harp Transaction is never consummated, 350% of the Common Stock outstanding as of the date hereof) and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes Convertible Preferred Certificate of Designations are not amended, modified or changed on or after the date hereof, (iv) the Warrant Preferred Shares; provided, that the terms of the Preferred Warrant are not amended, modified or changed on or after the Closing Date, (v) the Warrant Common Shares; provided, that the terms of the Common Warrants are not amended, modified or changed on or after the date hereofClosing Date, (vvi) any up to $150,000 of shares of Common Stock issued or issuable by (priced at the Company on or prior to no less than the Closing in a Permitted Subsequent Placement Bid Price (as defined in the Warrants); provided, that the terms Convertible Preferred Certificate of Designations) of the Permitted Subsequent Placement are Common Stock) and issued to bona fide vendors and service providers, for services rendered and not amendedfor capital raising purposes, modified or changed on or after the date hereofin lieu of cash payments at market rates, (vivii) shares of Common Stock issued issuable pursuant to acquisitions or strategic transactions, a Permitted ATM provided that such securities are issued as “restricted securities” (as defined in Rule 144x) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in minimum price at which the Company is issuing securities primarily may sell any shares of Common Stock in any Permitted ATM shall be $0.60 per share (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations and similar events), (y) the purpose aggregate amount of raising capital or shares of Common Stock sold pursuant to an entity whose primary business is investing any Permitted ATM shall not exceed $10,000,000 in securities the aggregate and (2y) all such issuances after at least thirty-three (33%) of the date hereof proceeds of each any every draw down pursuant to this clause (vi) do not, in any Permitted ATM is used to pay down the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off Permitted Senior Indebtedness (as defined in the NotesConvertible Preferred Certificate of Designations) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 1 contract
Samples: Securities Purchase and Exchange Agreement (Renovare Environmental, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will shall not, without the prior written consent of the Required HoldersHolders (as defined below), issue any Notes Purchased Securities (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or Purchased Securities. Unless otherwise agreed upon in writing by the Warrants. The Company agrees that Required Holders, for the period commencing on the date hereof Subscription Date and ending on the date immediately following the ninetieth (90th) Trading Day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure existsuse) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option Option or right to purchase, or otherwise dispose of (of, or announce any issuance, offer, sale, grant of any option Option or right to purchase purchase, or other disposition of) , any equity security or any equity-linked or related security (security, including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Securities Act), any stock or other security (other than Options) that is, at any time and under any circumstances, directly or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any shares of Common Stock (collectively, “Convertible Securities (as defined belowSecurities”), any debt, any preferred stock or any purchase rights) rights (any such issuance, offer, sale, grant, disposition or announcement (announcement, whether occurring during the Restricted Period or at any time thereafter) , is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options Options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2A) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such optionsOptions) after the date hereof Subscription Date pursuant to this clause (i) do not, in the aggregate, exceed more than 20% ten percent (10%) of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) Subscription Date, and (3B) the exercise price of any such options Options is not lowered, none of such options Options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options Options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities or Options (other than standard options Options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereofSubscription Date, provided that the conversion, exercise exercise, or other method of issuance (as the case may be) of any such Convertible Security or Option is made solely pursuant to the conversion, exercise exercise, or other method of issuance (as the case may be) provisions of such Convertible Security or Option that were in effect on the date immediately prior to the date of this AgreementSubscription Date, the conversion, exercise exercise, or issuance price of any such Convertible Securities or Options (other than standard options Options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities or Options (other than standard options Options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder thereunder, and none of the terms or conditions of any such Convertible Securities or Options (other than standard options Options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant SharesPermitted Convertible Notes; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, and (v) any Common Stock securities issued pursuant to acquisitions, divestitures, licenses, partnerships, collaborations, or issuable strategic transactions approved by the Company on Company’s board of directors or prior to a majority of the Closing in members of a Permitted Subsequent Placement committee of directors established for such purpose, which acquisitions, divestitures, licenses, partnerships, collaborations, or strategic transactions can have a Variable Rate Transaction (as defined in the Warrants); providedbelow) component, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (viiv), collectively the “Excluded Securities”). “Approved Stock Plan” means any stock incentive plan or other employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to Subscription Date, which shares provides for the grant of Common Stock and standard options to purchase Common Stock may be issued equity awards to any employee, officer or director for services provided to the Company in their capacity as such. “Variable Rate Transaction” means a transaction in which the Company or any Subsidiary (A) issues or sells any Convertible Securities or Options either (1) at a conversion, exercise, or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such Convertible Securities or Options, or (2) with a conversion, exercise, or exchange price that is subject to being reset at some future date after the initial issuance of such Convertible Securities or Options or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock, other than pursuant to a customary anti-dilution provision, or (B) enters into any agreement (including, without limitation, an equity line of credit or an “at-the-market” offering) whereby the Company or any Subsidiary may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights). Each Buyer shall be entitled to obtain injunctive relief against the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages.
Appears in 1 contract
Samples: Securities Purchase Agreement (Alternus Clean Energy, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes Preferred Shares (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the WarrantsCertificate of Designations. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) and during any Measurement Period (as defined in the Certificate of Designations) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 20% of the Common Stock issued and outstanding immediately following the Spin-Off Excluded Securities (as defined in the Note) and (3) the exercise price Certificate of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”Designations). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the Applicable Date 150th day after the later to occur of (x) the date hereof and (y) the Second Closing, provided that such period if the Second Closing shall be extended by not have occurred due to a termination of the number of calendar parties’ obligations to consummate the Second Closing in accordance with Section 8, then the foregoing provision shall apply only for (I) 150 days during such period and any extension thereof contemplated by this proviso on which any Registration Statement after the date hereof if the Company is not effective then in material breach of its obligations under the Transaction Documents at the time of such termination or any prospectus contained therein (II) 365 days after the date hereof if the Company is not available for use or any Current Public Information Failure exists) then in material breach of its obligations under the Transaction Documents at the time of such termination (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below)Securities, any debt, any preferred stock or any purchase rights) rights (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (iA) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Share Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (iA) do not, in the aggregate, exceed more than 20% 4,301,675 shares of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in adjusted for stock splits, stock combinations and other similar transactions occurring after the Notedate of this Agreement) and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiB) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) issued prior to the date hereof, provided that the conversion, conversion or exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, conversion or exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, conversion or exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) is not lowered, none of such Convertible Securities are (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase, or which results in an increase in, the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any of the Buyers; (iiiC) shares of preferred stock or Common Stock pursuant to the terms of the shareholders’ rights plan of the Company that are in effect as of the date of this Agreement, (D) shares of Common Stock to Free Bulkers S.A., the manager of the Company’s fleet, in lieu of cash compensation; (E) the Preferred Stock; (F) the Conversion Shares; provided, that (G) the terms of the Notes are not amended, modified or changed on or after the date hereof, Warrants; (ivH) the Warrant Shares; provided, that the terms (I) shares of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable pursuant to that certain Exchange Agreement, dated as of September 26, 2013, by and between the Company on or prior to and Crede (the Closing in a Permitted Subsequent Placement “Exchange Agreement”) and (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (viJ) shares of Common Stock issued pursuant solely in exchange for the contribution of a nautical vessel by an independent third party to acquisitions or strategic transactionsthe Company, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall the primary purpose of such issuance is not include a transaction in which to raise capital, (2) the shares of Common Stock are issued by the Company is issuing securities primarily for the purpose of raising capital or solely to an entity whose primary business is investing in securities such independent third party contributing such nautical vessel and (23) all such issuances of Common Stock after the date hereof pursuant to this clause (viJ) do not, not exceed the greater of (x) 7,500,000 shares of Common Stock in the aggregateaggregate (adjusted for stock splits, exceed more than 10% stock combinations and other similar transactions occurring after the date of the this Agreement) and (y) a number of shares of Common Stock in the aggregate having a value exceeding $3,000,000 in the aggregate (with the value of each such share issued and outstanding immediately following pursuant to this clause (J) being determined using the Spin-Off VWAP (as defined in the NotesWarrants) and of the Common Stock for the ten (vii10) as set forth in Schedule 4(kconsecutive Trading Day period immediately preceding the issuance thereof pursuant to this clause (J), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (iA) through (viiJ), collectively the “Excluded Securities”). “Approved Stock Share Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such. “Convertible Securities” means any capital stock, note, debenture or other security of the Company or any of its Subsidiaries that is, or may become, at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock, note, debenture or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any SecuritiesPreferred Shares or Warrants, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not directly or indirectly, issue any other securities that would cause a breach or default under the Notes Certificate of Designations or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 180th day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) ), is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock issued or standard options to purchase Common Stock issuable to directors, officers officers, employees or employees other service providers of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such optionsawards) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 205% of the shares of Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, lowered and none of such options are amended to increase the number of shares issuable thereunder and none or extend the term of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyersoptions; (ii) shares of Common Stock issued or issuable upon the conversion or exercise of Convertible Securities (other than standard options to purchase shares of Common Stock issued or issuable pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase shares of Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock those issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that materially adversely affects any of the Buyers; (iii) the Conversion Preferred Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Conversion Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) the Warrant Shares and any other securities issued or issuable pursuant to this Agreement or any of the Transaction Documents, including, without limitation, any shares of Common Stock issued or issuable pursuant to Section 9 of the Certificate of Designations, and (vi) securities issued as consideration for the acquisition of another entity by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); providedby merger, that the terms purchase of substantially all of the Permitted Subsequent Placement are not amendedassets or other reorganization or bona fide joint venture agreement, modified or changed on or after provided that such issuance is approved by the date hereof, (vi) shares majority of Common Stock issued pursuant to acquisitions or strategic transactions, the disinterested directors of the Company and provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, Restricted Period and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do does not, in the aggregate, exceed more than 105% of the shares of Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein date hereof (each of the foregoing in clauses (i) through (viivi), collectively the “Excluded Securities”)) and (vii) provided the Equity Conditions (as defined in the Certificate of Designations) are then satisfied and the closing price of the Common Stock on the Trading Market equals or exceeds 200% of the initial Conversion Price (as defined in the Certificate of Designations) for three consecutive Trading Days, sales of shares of Common Stock or Convertible Securities at a per share purchase price in excess of the greater of (a) 160% of the initial Conversion Price (as defined in the Certificate of Designations) or the Closing Sale Price for the previous Trading Day (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations and similar events; provided that if 90% of the aggregate Stated Value (as defined in the Certificate of Designations) of the Preferred Shares has been paid in full to the Buyers or otherwise converted to Common Stock, then the Company may sell shares of Common Stock at a per share purchase price in excess of the greater of (a) 130% of the exercise price of the Warrants or the Closing Sale Price for the previous Trading Day. “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase or other awards convertible, exercisable for or exchangeable for shares of Common Stock may be issued to any employee, officer officer, director or director other service provider for services provided to the Company and/or a Subsidiary in their capacity as such.
Appears in 1 contract
Samples: Securities Purchase Agreement (Petros Pharmaceuticals, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the Applicable Date (provided that such period shall be extended by 20th Trading Day after the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) date hereof (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) 12 shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 205% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the BuyersHolder; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the BuyersHolder; (iii) the Conversion New Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the New Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, Shares and (v) any Common Stock issued or issuable by the Company on or prior subject to the Closing Company’s compliance with Section 11 above, such shares of common stock and warrants with substantially identical terms to the New Securities issued in exchange for a Permitted Subsequent Placement (Series A Warrant held as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after date hereof by a single investor that is exercisable as of the date hereof, (vi) hereof into no more than 610,000 shares of Common Stock issued Stock, which exchange is consummated pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined an agreement on substantially identical in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant terms to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein Agreement (each of the foregoing in clauses (i) through (viiv), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated herebyi) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the Applicable ten (10) month anniversary of the Closing Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (collectively, the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below)Securities, any debtOrdinary Shares, any ADSs, any preferred stock shares or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k4(m) shall not apply in respect of (i) the issuance of (iA) shares of Common Stock Ordinary Shares or ADSs or standard options to purchase Common Stock Ordinary Shares or ADSs to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Share Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 20% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Note) and (3) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiB) shares of Common Stock Ordinary Shares or ADSs issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock Ordinary Shares or ADSs issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance conversion price of any such Convertible Securities (other than standard options to purchase Common Stock Ordinary Shares or ADSs issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock Ordinary Shares or ADSs issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock Ordinary Shares or ADSs issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiiC) the Conversion Purchased Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (ivD) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities Shares and (2E) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein ADR Securities (each of the foregoing in clauses (iA) through (viiE), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 1 contract
Samples: Securities Purchase Agreement (JA Solar Holdings Co., Ltd.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any SecuritiesPreferred Shares or Warrants, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not directly or indirectly, issue any other securities that would cause a breach or default under the Notes Certificate of Designations or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the Applicable 90th day after the Closing Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) ), is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock issued or standard options to purchase Common Stock issuable to directors, officers officers, employees or employees other service providers of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such optionsawards) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 205% of the shares of Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, lowered and none of such options are amended to increase the number of shares issuable thereunder and none or extend the term of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyersoptions; (ii) shares of Common Stock issued or issuable upon the conversion or exercise of Convertible Securities (other than standard options to purchase shares of Common Stock issued or issuable pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase shares of Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock those issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that materially adversely affects any of the Buyers; (iii) the Conversion Preferred Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Conversion Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) the Warrant Shares and any other securities issued or issuable pursuant to this Agreement or any of the Transaction Documents, including, without limitation, any shares of Common Stock issued or issuable pursuant to Section 9 of the Certificate of Designations, and (vi) securities issued as consideration for the acquisition of another entity by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); providedby merger, that the terms purchase of substantially all of the Permitted Subsequent Placement are not amendedassets or other reorganization or bona fide joint venture agreement, modified or changed on or after provided that such issuance is approved by the date hereof, (vi) shares majority of Common Stock issued pursuant to acquisitions or strategic transactions, the disinterested directors of the Company and provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, Restricted Period and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do does not, in the aggregate, exceed more than 105% of the shares of Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein date hereof (each of the foregoing in clauses (i) through (viivi), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase or other awards convertible, exercisable for or exchangeable for shares of Common Stock may be issued to any employee, officer officer, director or director other service provider for services provided to the Company and/or a Subsidiary in their capacity as such.
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any SecuritiesNotes, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 90th calendar day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock shares or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) the shares registered for sale in connection with the listing of the Common Shares on an Eligible Market other than a market operated by OTC Markets Group, Inc., (ii) Common Shares, Restricted Stock Units, or standard options to purchase Common Stock Shares to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Share Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock Shares issuable upon exercise of such options) after the date hereof pursuant to this clause (iii) do not, in the aggregate, exceed more than 20% of the 10,000,000 Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Note) Shares and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiiii) shares of Common Stock Shares issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock Shares issued pursuant to an Approved Stock Share Plan that are covered by clause (iii) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock Shares issued pursuant to an Approved Stock Share Plan that are covered by clause (iii) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock Shares issued pursuant to an Approved Stock Share Plan that are covered by clause (iii) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.terms
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the Applicable thirty (30) Trading Day anniversary of the Closing Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any the Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure existsuse) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, the immediately preceding sentence in this Section 4(k4(j) shall not apply (i) in respect of the issuance of (iA) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Share Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (iA) do not, in the aggregate, exceed more than 205% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiB) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance conversion price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiiC) the Conversion Common Shares; provided, that and (D) the terms of the Notes are not amended, modified or changed on or after the date hereof, Warrants; and (ivE) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein Shares (each of the foregoing in clauses (iA) through (viiE), collectively the “Excluded Securities”) and (ii) during any time period (but only during the time period) in which (1) during Regular Trading Hours (as defined below) on a Trading Day, the Bid Price (as defined in the Warrants) of the Common Stock is greater than or equal to the Trigger Price or (2) at all times other than during Regular Trading Hours on a Trading Day, the most recent Closing Sale Price (as defined in the Warrants) of the Common Stock is greater than or equal to the Trigger Price (as applicable). “Approved Stock Share Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries. “Trigger Price” means $2.50 per share (as adjusted for stock splits, stock combinations and other similar transactions occurring after the date hereof). “Regular Trading Hours” means “regular trading hours” (as that term is defined in Rule 600(b)(64) of Regulation NMS promulgated under the federal securities laws).
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 90th Trading Day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 205% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any shares of Common Stock issued or issuable by the Company on in connection with any bona fide strategic or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); commercial alliances, acquisitions, mergers, licensing arrangements, and strategic partnerships, provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the primary purpose of raising such issuance is not to raise capital or to an entity whose primary business is investing in securities as reasonably determined, and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% purchaser or acquirer or recipient of the Common Stock issued and outstanding immediately following securities in such issuance solely consists of either (I) the Spin-Off actual participants in such strategic or commercial alliance, strategic or commercial licensing arrangement or strategic or commercial partnership, (as defined II) the actual owners of such assets or securities acquired in such acquisition or merger or (III) the Notes) and (vii) as set forth in Schedule 4(k)stockholders, provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.partners,
Appears in 1 contract
Samples: Securities Purchase Agreement (Splash Beverage Group, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securitiesa Note, the Company will not, without the prior written consent of the Required HoldersHolders (as defined below), issue any Notes (other than to notes of the Buyers as contemplated hereby) same series and the Company shall not issue any other securities that would cause a breach or default under the Notes or the WarrantsNotes. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the Applicable 90th calendar day after the Closing Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any equity purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) other than to the Buyers as contemplated hereby is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k4(i) shall not apply in respect of the issuance of (i) shares of Common Stock or Stock, restricted stock units, standard options to purchase Common Stock or other equity awards (and any shares of Common Stock issued upon exercise or settlement thereof) to directors, officers officers, consultants or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 20% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Note) and (3) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock or other securities issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, except pursuant to the terms thereof that were in effect on the date immediately prior to the date of this Agreement, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder thereunder, except pursuant to the terms thereof that were in effect on the date immediately prior to the date of this Agreement, and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers, except pursuant to the terms thereof that were in effect on the date immediately prior to the date of this Agreement; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms securities to affiliates of the Warrants are not amended, modified Company or changed on or after to any entities affiliated with members of the date hereof, Board of Directors of the Company; (v) the issuance of equity securities or any Common Stock issued or issuable by the Company on or prior equity-linked debt for net proceeds of up to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, $200 million and (vi) any shares of Common Stock or Convertible Securities issued pursuant or issuable in connection with strategic or commercial alliances, acquisitions, mergers, and strategic partnerships, provided, that (x) the primary purpose of such issuance is not to acquisitions raise capital as reasonably determined, (y) the purchaser or acquirer of the securities in such issuance solely consists of either (A) the actual participants in such strategic or commercial alliance or strategic transactionsor commercial partnership, provided that (B) the actual owners of such assets or securities are issued as “restricted securities” acquired in such acquisition or merger or (as defined C) the stockholders, partners or members of the foregoing Persons, in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth hereineach case, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset asset, in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, and (1z) but the number or amount of securities issued to such Persons by the Company shall not include a transaction be disproportionate to each such Person’s actual participation in which such strategic or commercial alliance or strategic or commercial partnership or ownership of such assets or securities to be acquired by the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do notCompany, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”)applicable. “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and Stock, restricted stock units, standard options to purchase Common Stock and other equity awards may be issued to any employee, consultant, officer or director for services provided to the Company in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following that is 90 days after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) date hereof (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity Common Stock or any security or any debt or other instrument directly or indirectly convertible or exchangeable or exercisable into Common Stock (each a “Convertible Security”) or which constitutes (or would constitute but for lack of a fixed exercise or conversion or similar price or if it were not solely cash settled) a “derivative security” (as defined under the rules and regulations under Section 16 of the 0000 Xxx) or otherwise an equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this This Section 4(k4(b) shall not apply in respect of the issuance of (iA) shares of Common Stock or standard options to purchase Common Stock or other equity linked securities (e.g., stock appreciation rights) to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined belowShare Plan), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (iA) do not, in the aggregate, exceed more than 202% of the shares of Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Note) and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiB) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance conversion price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiiC) the Conversion SharesWarrants; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (ivD) the Warrant Shares; provided(E) issuances of equity to a seller, that or in the terms case of a merger, the equity holders of the Warrants are not amendedtarget company in such merger, modified or changed on the officers or after the date hereofemployees thereof, (v) any Common Stock issued in each case in connection with a bona fide merger, business combination transaction or issuable by the Company on acquisition of stock or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms assets outside of the Permitted Subsequent Placement are not amendedordinary course; (F) a stock split or other subdivision or combination, modified or changed a stock dividend made to all holders of any Company equity on a pro rata basis; or after the date hereof, (viG) shares of Common Stock or Convertible Securities issued pursuant to acquisitions a bank or strategic transactions, provided that such securities are issued other Person acting as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement bona fide lender in connection therewith during the prohibition period set forth herein, and with a credit facility or other indebtedness provided that any by such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (iA) through (viiG), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.Approved
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the thirty (30) Trading Day (as defined in the Warrants) anniversary of the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any the Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure existsuse) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below)Securities, any debt, any preferred stock or any purchase rights) rights (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (iA) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Share Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (iA) do not, in the aggregate, exceed more than 205% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; , (iiB) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) issued prior to the date hereof, provided that the conversion, conversion or exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; , and (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (ivC) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein Shares (each of the foregoing in clauses (iA) through (viiC), collectively the “Excluded Securities”). “Approved Stock Share Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Samples: Securities Purchase Agreement (China Armco Metals, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 180th calendar day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock shares or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock Ordinary Shares or standard options to purchase Common Stock Ordinary Shares to directors, officers officers, employees or employees advisors of the Company in their capacity as such pursuant to an Approved Stock Share Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock Ordinary Shares issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 2010% of the Common Stock Ordinary Shares issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock Ordinary Shares issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock Ordinary Shares issued pursuant to an Approved Stock Share Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock Ordinary Shares issued pursuant to an Approved Stock Share Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock Ordinary Shares issued pursuant to an Approved Stock Share Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock Ordinary Shares issued pursuant to an Approved Stock Share Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, Shares and (v) any shares of Common Stock issued or issuable by the Company on in connection with any bona fide strategic or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); commercial alliances, acquisitions, mergers, licensing arrangements, and strategic partnerships, provided, that (x) the terms primary purpose of such issuance is not to raise capital as reasonably determined, and (y) the purchaser or acquirer or recipient of the Permitted Subsequent Placement are not amendedsecurities in such issuance solely consists of either (A) the actual participants in such strategic or commercial alliance, modified strategic or changed on commercial licensing arrangement or after the date hereofstrategic or commercial partnership, (viB) shares the actual owners of Common Stock issued pursuant to acquisitions such assets or strategic transactionssecurities acquired in such acquisition or merger or (C) the stockholders, provided that such securities are issued as “restricted securities” (as defined partners, employees, consultants, officers, directors or members of the foregoing Persons, in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth hereineach case, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset asset, in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, and (1z) but the number or amount of securities issued to such Persons by the Company shall not include a transaction be disproportionate to each such Person’s actual participation in which the Company is issuing securities primarily for the purpose of raising capital (or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% fair market value of the Common Stock issued and outstanding immediately following contribution to) such strategic or commercial alliance or strategic or commercial partnership or ownership of such assets or securities to be acquired by the Spin-Off (Company, as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein applicable (each of the foregoing in clauses (i) through (viiiv), collectively the “Excluded Securities”). “Approved Stock Share Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock Ordinary Shares and standard options to purchase Common Stock Ordinary Shares may be issued to any employee, officer or director for services provided to the Company in their capacity as such. “Convertible Securities” means any share capital or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any share capital or other security of the Company (including, without limitation, Ordinary Shares) or any of its Subsidiaries.
Appears in 1 contract
Samples: Securities Purchase Agreement (China SXT Pharmaceuticals, Inc.)
Additional Issuance of Securities. So Except as set forth below, so long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the WarrantsNotes. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 30th Trading Day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below)Common Share Equivalents, any debt, any preferred stock shares or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of limit, restrict or prevent the Company’s issuance of (i) shares of Common Stock Shares or standard options to purchase Common Stock Shares to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Share Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock Shares issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 205% of the Common Stock Shares issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock Shares issued upon the conversion or exercise of Convertible Securities Common Share Equivalents (other than standard options to purchase Common Stock Shares issued pursuant to an Approved Stock Share Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security Common Share Equivalent is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security Common Share Equivalent that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities Common Share Equivalents (other than standard options to purchase Common Stock Shares issued pursuant to an Approved Stock Share Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities Common Share Equivalents (other than standard options to purchase Common Stock Shares issued pursuant to an Approved Stock Share Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities Common Share Equivalents (other than standard options to purchase Common Stock Shares issued pursuant to an Approved Stock Share Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued Shares or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement Common Share Equivalents (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) including any shares of Common Stock issuable, directly or indirectly, upon conversion, exercise of exchange thereof, collectively, the “Permitted Securities”)(solely to the extent such Permitted Securities do not constitute Indebtedness and/or are not issued pursuant to acquisitions in connection with the incurrence by the Company or strategic transactionsany of its Subsidiaries, provided that directly or indirectly, of any Indebtedness, as applicable) (each, a “Permitted Issuance”, and the holders of any such securities are issued as Permitted Securities, the “restricted securities” Permitted Holders”), provided, that, until the later of twenty (20) Trading Days after the (x) Initial Conversion Date (as defined in Rule 144reduced for any applicable Permitted Issuance) and carry no registration rights that require or (y) the Applicable Date, the Company shall not permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person Permitted Holder (or any other Person) to (as evidenced by a lock-up agreement acceptable to the equityholders Required Holders (each, a “Lock-Up Agreement”)), directly or indirectly, (a) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase, make any short sale or otherwise dispose of or agree to dispose of, any securities of the Company, or establish or increase a Person) which isput equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities and Exchange Act of 1934, itself or through its subsidiaries, an operating company or an owner as amended and the rules and regulations of an asset in a business synergistic the SEC promulgated thereunder with the business respect to any securities of the Company owned, directly or indirectly, by such Permitted Holder (including holding as a custodian) or with respect to which such Permitted Holder has beneficial ownership within the rules and shall provide regulations, or (b) enter into any swap or other arrangement that transfers to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do notanother, in the aggregatewhole or in part, exceed more than 10% any of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing economic consequences of ownership of any registration statement in connection therewith during of the prohibition period set forth herein Permitted Securities; (each of the foregoing in clauses (i) through (viiv), collectively the “Excluded Securities”). “Approved Stock Share Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock Shares and standard options to purchase Common Stock Shares may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 1 contract
Samples: Securities Purchase Agreement (Visionary Holdings Inc.)
Additional Issuance of Securities. 110. So long as any Buyer beneficially owns any SecuritiesConvertible Notes or Warrants remain outstanding, the Company will not, without the prior written consent of the Required HoldersHolders (as defined below), issue any Convertible Notes or Warrants (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Convertible Notes or the Warrants. The Company agrees with the initial Buyer that for the period commencing on the date hereof and ending on the date immediately following the Applicable Date date upon which the Company has for the prior 90 calendar day period filed the financial statement restatements set forth on Schedule 3(k) and all reports, schedules, forms, proxy statements, statements and other documents required to be filed by it with the SEC (provided that such other than Section 16 ownership filings) pursuant to the reporting requirements of the 1934 Act (reports filed in compliance with the time period specified in Rule 12b-25 promulgated under the 1934 Act shall be extended by the number of calendar days during such period and any extension thereof contemplated by considered timely for this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure existspurpose) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly (i) issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debtSecurities, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”)) or (ii) submit or file any registration statement under the 1933 Act in respect of any of the foregoing. Notwithstanding the foregoing, this Section 4(k4(i)(i) shall not apply during the Restricted Period in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 20% of the Common Stock issued and outstanding immediately following the Spin-Off Excluded Securities (as defined in the Note) and (3) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the WarrantsNotes); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 1 contract
Samples: Omnibus Amendment (PARETEUM Corp)
Additional Issuance of Securities. So long as any Buyer beneficially owns any SecuritiesDuring the period commencing on the date hereof and ending on the later of (x) the date no Notes or Warrants remain outstanding and (y) the Additional Closing Expiration Date, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period (x) commencing on the date hereof and ending on the date immediately following the Applicable 30th Trading Day after the Effective Date (as defined in the Registration Rights Agreement) of the initial Registration Statement (as defined in the Registration Rights Agreement) (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) and (the y) each trailing 30 calendar day period commencing on, and including, each Trading Day immediately following a Closing Date hereunder (each, a “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock shares or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock Ordinary Shares or standard options to purchase Common Stock Ordinary Shares to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Share Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock Ordinary Shares issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 205% of the Common Stock Ordinary Shares issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock Ordinary Shares issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock Ordinary Shares issued pursuant to an Approved Stock Share Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock Ordinary Shares issued pursuant to an Approved Stock Share Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock Ordinary Shares issued pursuant to an Approved Stock Share Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock Ordinary Shares issued pursuant to an Approved Stock Share Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, and (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein Shares (each of the foregoing in clauses (i) through (viiiv), collectively the “Excluded Securities”). “Approved Stock Share Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock Ordinary Shares and standard options to purchase Common Stock Ordinary Shares may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 1 contract
Samples: Securities Purchase Agreement (NewGenIvf Group LTD)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required HoldersHolders (as defined below), issue any Notes shares of Series C Convertible Preferred Stock (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes Certificate of Designations, the Preferred Warrants or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 90th Trading Day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso provision on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) rights (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Purchase Common Stock to directors, officers third party service providers in lieu of or employees of the Company in their capacity as such pursuant addition to an Approved Stock Plan (as defined below), cash for services rendered; provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 2015% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (ii) do not, in the aggregate, exceed more than 15% of the Common Stock issued and outstanding immediately prior to the date hereof and (2) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (iii) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (iii) above) is not loweredlowered other than as may be required by the terms of such Convertible Securities in effect as of the date hereof, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (iii) above) are amended to increase the number of shares issuable thereunder other than as may be required by the terms of such Convertible Securities in effect as of the date hereof and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (iii) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiiiv) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); providedAdditional Preferred Shares, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, and (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein Warrant Shares (each of the foregoing in clauses (i) through (viivi), collectively the “Excluded Securities”) and (vii) a bone fide public offering of securities of the Company, which (A) would not reasonably be expected to result in the occurrence of a Triggering Event (as defined in the Certificate of Designations), (B) results in gross proceeds in an amount not less than $2 million and not greater than $3 million, (C) consists of a single offering with only one closing (subject to any subsequent closing of an overallotment option granted to the underwriters) and (D) is consummated pursuant to a registration statement on Form S-3. “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required HoldersBuyers holding a majority in aggregate of number of Preferred Shares then outstanding, issue any Notes Preferred Shares (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes Certificate of Designations or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the one hundred twenty (120) Trading Day (as defined in the Warrants) anniversary of the Applicable Date (provided that such period shall be extended by the number of calendar days Trading Days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure existsuse) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (iA) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (iA) do not, in the aggregate, exceed more than 2010% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiB) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (iA) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (iA) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (iA) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (iA) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiiC) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (ivD) the Dividend Shares, (E) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, and (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (viF) shares of Common Stock issued pursuant to acquisitions or in connection with strategic transactionsmergers and acquisitions, provided that such securities are issued as “restricted securities” (as defined in Rule 144I) and carry no registration rights that require or permit the filing primary purpose of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be is not to a Person raise capital, (or to II) the equityholders acquirer of a Person) which is, itself or through its subsidiaries, an operating company or an owner such shares of an asset Common Stock in a business synergistic with the business such issuance solely consists of the Company and shall provide to the Company additional benefits in addition to the investment of funds, either (1) but the actual owners of such assets or securities acquired in such merger or acquisition or (2) the stockholders, partners or members of the foregoing Persons, (III) the number or amount (as the case may be) of such shares of Common Stock issued to each such Person by the Company shall not include a transaction in which be disproportionate to such Person’s actual ownership of such assets or securities to be acquired by the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities (as applicable) and (2IV) all such issuances of Common Stock after the date hereof pursuant to this clause (viE) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein date hereof (each of the foregoing in clauses (iA) through (viiE), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Samples: Securities Purchase Agreement (WPCS International Inc)
Additional Issuance of Securities. So long as any Buyer beneficially owns any SecuritiesNotes, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 90th Trading Day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock shares or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock Ordinary Shares or standard options to purchase Common Stock Ordinary Shares to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Share Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock Ordinary Shares issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 205% of the Common Stock Ordinary Shares issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock Ordinary Shares issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock Ordinary Shares issued pursuant to an Approved Stock Share Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock Ordinary Shares issued pursuant to an Approved Stock Share Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock Ordinary Shares issued pursuant to an Approved Stock Share Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock Ordinary Shares issued pursuant to an Approved Stock Share Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, and (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein Shares (each of the foregoing in clauses (i) through (viiiv), collectively the “Excluded Securities”). “Approved Stock Share Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock Ordinary Shares and standard options to purchase Common Stock Ordinary Shares may be issued to any employee, officer or director for services provided to the Company in their capacity as such. “Convertible Securities” means any share capital or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any share capital or other security of the Company (including, without limitation, Ordinary Shares) or any of its Subsidiaries.
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any SecuritiesNotes or Warrants, the Company will not, without the prior written consent of the Required Holders, directly or indirectly, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 180th day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) ), is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase shares of Common Stock issued or issuable to directors, officers officers, employees or employees other service providers of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such optionsawards) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 205% of the shares of Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, lowered and none of such options are amended to increase the number of shares issuable thereunder and none or extend the term of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyersoptions; (ii) shares of Common Stock issued or issuable upon the conversion or exercise of Convertible Securities (other than shares of Common Stock or standard options to purchase shares of Common Stock issued or issuable pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase shares of Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock those issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; providedShares and any other securities issued or issuable pursuant to this Agreement, that the terms any of the Warrants are not amended, modified or changed on or after the date hereofTransaction Documents, (v) any Common Stock securities issued or issuable as consideration for the acquisition of another entity by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); providedby merger, that the terms purchase of substantially all of the Permitted Subsequent Placement are not amendedassets or other reorganization or bona fide joint venture agreement, modified or changed on or after provided that such issuance is approved by the date hereof, (vi) shares majority of Common Stock issued pursuant to acquisitions or strategic transactions, the disinterested directors of the Company and provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, Restricted Period and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do does not, in the aggregate, exceed more than 105% of the shares of Common Stock issued and outstanding immediately following prior to the Spin-Off date hereof, and (vi) shares of Common Stock issued or issuable pursuant to that certain settlement agreement between the Company and CoreProminence, d/b/a CoreIR (“CoreIR”), dated as defined of July 12, 2024, in the Notesform previously approved by the lead Buyer (the “CoreIR Agreement”) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (viivi), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase or other awards convertible, exercisable for or exchangeable for shares of Common Stock may be issued to any employee, officer officer, director or director other service provider for services provided to the Company and/or a Subsidiary in their capacity as such.
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any SecuritiesDuring the period commencing on the date hereof and ending on the later of (x) the date no Notes remain outstanding and (y) the Additional Optional Closing Expiration Date, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 30th Trading Day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Share Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 205% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; and (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, and (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein Shares (each of the foregoing in clauses (i) through (viiiv), collectively the “Excluded Securities”). “Approved Stock Share Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following 30th calendar day after the Applicable Closing Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), 1000 Xxx) or any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during in the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”January SPA). Notwithstanding the foregoing, this Section 4(k4(b)(xviii) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined belowin the January SPA), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 2010% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the BuyersHolder; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the BuyersHolder; (iii) the Conversion Shares; providedShares (as defined in the January SPA), that the terms of the Notes are not amended, modified or changed on or after the date hereof, and (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement Shares (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144January SPA) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein May Warrant Shares (each of the foregoing in clauses (i) through (viiiv), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated herebyi) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for (x) the period commencing on the date hereof and ending on the date immediately following the Applicable Date ninetieth (provided that such period shall be extended by 90th) calendar day after the number effective date of calendar days during such period and any extension thereof contemplated by this proviso on which any the Resale Registration Statement is not effective or for the Note Shares underlying the Initial Purchased Notes and (y) the period commencing on the date of delivery of any prospectus contained therein is not available Subsequently Purchased Notes Notice and ending on the date immediately following the ninetieth (90th) calendar day after the effectiveness of the Resale Registration Statement for use or any Current Public Information Failure exists) the Note Shares underlying such Subsequently Purchased Notes (the each such period, a “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or register or amend any outstanding registration statements or file any shelf registration statements or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debtSecurities, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k4(j)(i) shall not apply during a Restricted Period in respect of (A) the issuance of (i) shares of Common Stock Options or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Convertible Securities issued under any Approved Stock Plan (as defined below), provided that (1) such securities are issued so long as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, aggregate number of shares issued and issuable pursuant thereto does not exceed more than 205% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (3ii) the exercise price of any such options Options is not lowered and the conversion price of any such Convertible Securities is not lowered, none of such options Options or Convertible Securities are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; , (iiB) shares the issuances of Note Shares, or (C) any sale or issuance of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to under an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as ATM Sales Program. An “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 1 contract
Additional Issuance of Securities. So long as (a) If the Company proposes to offer or sell any Buyer beneficially owns any New Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than shall first offer such New Securities to the Buyers Purchaser. The Purchaser shall be entitled to apportion the preemptive right hereby granted to it in such proportions as contemplated hereby) it deems appropriate among itself, its Affiliates, and the Company shall not issue its beneficial interest holders, such as limited partners, members or any other securities that would cause a breach or default Person having “beneficial ownership,” as such term is defined in Rule 13d-3 promulgated under the Notes or the WarrantsExchange Act. The Company agrees that for shall give notice (the period commencing on “Offer Notice”) to the date hereof and ending on the date immediately following the Applicable Date Purchaser, stating (provided that i) its bona fide intention to offer such period shall be extended by New Securities, (ii) the number of calendar days during such period New Securities to be offered, and any extension thereof contemplated by this proviso on (iii) the price and terms, if any, upon which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (it proposes to offer such New Securities, provided that if the “Restricted Period”)New Securities are to be sold in an underwritten public offering, neither the price with respect to such New Securities shall be such public offering price that the Company nor any anticipates in such offering, as determined by the Company in good faith at the time of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right the Offer Notice. The Purchaser may elect by written notice delivered to purchase, or otherwise dispose the Company within ten (10) Business Days of (or announce any issuance, offer, sale, grant of any option or right the date the Offer Notice is given to purchase or other disposition ofotherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that Ordinary Shares then held by the Purchaser (including all Ordinary Shares represented by ADSs) any equity security bears to the total number of Ordinary Shares of the Company then outstanding. To the extent not all New Securities offered in the Offer Notice are initially subscribed for, the Purchaser may, by giving notice to the Company within five (5) Business Days of the date the Purchaser is notified that not all New Securities were initially subscribed for, elect to purchase or any equity-linked or related security (includingacquire, without limitationin addition to the number of New Securities specified above, and at the price and on the terms specified in the Offer Notice, any “equity security” (as or all of such New Securities that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”)were not subscribed for. Notwithstanding the foregoing, the requirements of this Section 4(k5.8(a) shall not cease to apply in respect at such time that the Securities (including, for the avoidance of doubt, any Purchased Securities) held by the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) Purchaser and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do notits Affiliates represent, in the aggregateaggregate and on an as-converted basis, exceed more fewer than 20% five percent (5%) of the Common Stock issued and Company’s outstanding immediately following the Spin-Off (as defined in the Note) and (3) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Ordinary Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will shall not, without the prior written consent of the Required HoldersHolders (as defined below), issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or Notes. Unless otherwise agreed upon in writing by the Warrants. The Company agrees that Buyers, for the period commencing on the date hereof and ending on the date immediately following the forty-fifth (45th) calendar day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement registration statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure existsuse) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option Option or right to purchase, or otherwise dispose of (of, or announce any issuance, offer, sale, grant of any option Option or right to purchase or other disposition of) , any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Securities Act), any stock or other security (other than Options) that is, at any time and under any circumstances, directly or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any shares of Common Stock (collectively, “Convertible Securities (as defined belowSecurities”), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (announcement, whether occurring during the Restricted Period or at any time thereafter) , is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options Options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2A) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such optionsOptions) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 20% five percent (5%) of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof, and (3B) the exercise price of any such options Options is not lowered, none of such options Options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options Options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities or Options (other than standard options Options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security or Option is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security or Option that were in effect on the date immediately prior to the date of this AgreementSubscription Date, the conversion, exercise or issuance price of any such Convertible Securities or Options (other than standard options Options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities or Options (other than standard options Options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities or Options (other than standard options Options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) securities issued pursuant to acquisitions, divestitures, licenses, partnerships, collaborations or strategic transactions approved by the Warrant Shares; provided, that the terms Company’s board of directors or a majority of the Warrants are not amendedmembers of a committee of directors established for such purpose, modified which acquisitions, divestitures, licenses, partnerships, collaborations or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in strategic transactions can have a Permitted Subsequent Placement Variable Rate Transaction (as defined in the Warrants); providedbelow) component, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and securities; (2v) all such any issuances after or sales of Common Stock made on or following the date hereof Subscription Date pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% terms of the that certain Common Stock issued Purchase Agreement, dated March 25, 2022, by and outstanding immediately following between the Spin-Off (as defined in the Notes) Company and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein Tumim Stone Capital LLC (each of the foregoing in clauses (i) through (viiv), collectively the “Excluded Securities”); and, (vi) subject to the Company’s compliance with Section 8 of the Note (including, without limitation, the issuances of Subsequent Warrants (as defined in the Note) to the Buyers in connection therewith as required thereunder, if applicable), any bone fide public offering of Common Stock and/or Options of the Company. “Approved Stock Plan” means any stock incentive plan or other employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to Subscription Date, which shares provides for the grant of Common Stock and standard options to purchase Common Stock may be issued equity awards to any employee, officer or director for services provided to the Company in their capacity as such. “Variable Rate Transaction” means a transaction in which the Company or any Subsidiary (1) issues or sells any Convertible Securities or Options either (x) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such Convertible Securities or Options, or (y) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such Convertible Securities or Options or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock, other than pursuant to a customary “weighted average” anti-dilution provision, or (2) enters into any agreement (including, without limitation, an equity line of credit or an “at-the-market” offering) whereby the Company or any Subsidiary may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights). Each Buyer shall be entitled to obtain injunctive relief against the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages.
Appears in 1 contract
Samples: Securities Purchase Agreement (Super League Gaming, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the Applicable Date tenth (provided that such period shall be extended by 10th) calendar day after the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”)Closing Date, neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Securities Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k4(f) shall not apply in respect of the issuance of (iA) shares of Common Stock or standard options to purchase Common Stock to directors, officers officers, employees, or employees consultants of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 20% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Note) and (3) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the BuyersInvestor; (iiB) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (as defined below) (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (iA) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (iA) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (iA) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (iA) above) are otherwise materially changed in any manner that adversely affects any of the BuyersInvestor; (iiiC) the Conversion Shares; providedSecurities, that the terms of the Notes are not amended, modified or changed on or after the date hereof, and (ivD) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares sales of Common Stock issued pursuant to acquisitions or strategic transactionsthe Purchase Agreement, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only may be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic mutually agreed with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”)Investor. “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, consultant, officer or director for services provided to the Company in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated herebyi) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for (x) the period commencing on the date hereof and ending on the date immediately following the Applicable Date (provided that such period shall be extended by 30th calendar day after the number effective date of calendar days during such period and any extension thereof contemplated by this proviso on which any the Resale Registration Statement is not effective or (as defined below) for the Note Shares underlying the Initial Purchased Notes and (y) the period commencing on the date of delivery of any prospectus contained therein is not available Subsequently Purchased Notes Notice and ending on the date immediately following the 30th calendar day after the effectiveness of the Resale Registration Statement for use or any Current Public Information Failure exists) the Note Shares underlying the such Subsequently Purchased Notes (the each such period, a “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or register or amend any outstanding registration statements (other than amendments to outstanding registration statements to correct any inaccurate information or update for material changes) or file any shelf registration statements or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debtSecurities, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k4(j)(i) shall not apply during a Restricted Period in respect of (A) the issuance of Options or Convertible Securities issued under any Approved Stock Plan, so long as (i) the aggregate number of shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such issued and issuable pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, thereto does not exceed more than 205% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (3ii) the exercise price of any such options Options is not lowered and the Conversion Price of any such Convertible Securities is not lowered, none of such options Options or Convertible Securities are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; , (iiB) shares the issuances of Note Shares, (C) any sale or issuance of securities under an ATM Sales Program, Equity Line of Credit or the June Plan (other than sales or issuances under ATM Sales Program in which a single investor or group of investors is sold or issued in excess of three million dollars ($3,000,000) in the aggregate of Common Stock issued upon in a single transaction or series of related transactions), and provided that any sales or issuances made under the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock June Plan that are covered by clause shall (i) above) issued prior to be made at the date hereof, provided that price per share described in the conversion, exercise or other method “Plan of issuance (as the case may be) Distribution—Form of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none Sales Agreement with Investor” subsection of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable prospectus supplement filed by the Company on or prior to the Closing in a Permitted Subsequent Placement June 26, 2023 and (as defined ii) not exceed one million dollars ($1,000,000) in the Warrants); providedaggregate during the Restricted Period, that or (D) the terms issuance of securities of the Permitted Subsequent Placement Company or any Subsidiary of the Company that are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities freely saleable during any Restricted Period and are issued as “restricted securities” (as defined consideration in Rule 144) and carry no registration rights that require acquisitions, divestitures, partnerships, licenses, collaborations or permit strategic transactions approved by the filing board of any registration statement in connection therewith during directors or a majority of the prohibition period set forth hereinmembers of a committee of directors of the Company or applicable Subsidiary established for such purpose, and provided that any such issuance shall only be to a Person (or to the equityholders equity holders of a Person) which is, itself or through its subsidiariessubsidiaries or controlled affiliates, an operating company or an owner of an asset in a business synergistic with the business of the Company and/or its Subsidiaries and shall provide to the Company and/or its Subsidiaries additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which a Subsidiary of the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as a “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded SecuritiesStrategic Investment”). An “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 1 contract
Samples: Securities Purchase Agreement (AMERICAN BATTERY TECHNOLOGY Co)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any or other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 90th calendar days after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, consultants, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 2025% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms any shares of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on in connection with any bona fide strategic or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); commercial alliances, acquisitions, mergers, licensing arrangements, and strategic partnerships, provided, that (w) the terms primary purpose of such issuance is not to raise capital as reasonably determined, (x) such strategic or commercial alliances, acquisitions, mergers, licensing arrangements, and strategic partnerships, as applicable, has been approved by a majority of the Permitted Subsequent Placement are not amended, modified or changed on or after independent members of the date hereofboard of directors of the Company, (viy) shares the purchaser or acquirer or recipient of Common Stock issued pursuant to acquisitions the securities in such issuance solely consists of either (A) the actual participants in such strategic or commercial alliance, strategic or commercial licensing arrangement or strategic transactionsor commercial partnership, provided that (B) the actual owners of such assets or securities are issued as “restricted securities” acquired in such acquisition or merger or (as defined C) the stockholders, partners, employees, consultants, officers, directors or members of the foregoing Persons, in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth hereineach case, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset asset, in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, and (1z) but the number or amount of securities issued to such Persons by the Company shall not include a transaction be disproportionate to each such Person’s actual participation in which (or fair market value of the Company is issuing contribution to) such strategic or commercial alliance or strategic or commercial partnership or ownership of such assets or securities primarily for to be acquired by the purpose of raising capital or to an entity whose primary business is investing in securities Company, as applicable; (iv) the Conversion Shares, and (2v) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein Warrant Shares (each of the foregoing in clauses (i) through (viiv), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan or agreement which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, consultant, officer or director for services provided to the Company in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Samples: Securities Purchase Agreement (Aditx Therapeutics, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 30th Trading Day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock shares or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock Shares or standard options to purchase Common Stock Shares to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Share Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock Shares issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 205% of the Common Stock Shares issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock Shares issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock Shares issued pursuant to an Approved Stock Share Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock Shares issued pursuant to an Approved Stock Share Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock Shares issued pursuant to an Approved Stock Share Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock Shares issued pursuant to an Approved Stock Share Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, and (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein Shares (each of the foregoing in clauses (i) through (viiiv), collectively the “Excluded Securities”). “Approved Stock Share Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock Shares and standard options to purchase Common Stock Shares may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 1 contract
Samples: Securities Purchase Agreement (Visionary Education Technology Holdings Group Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of Buyers holding a majority in aggregate principal amount of the Required HoldersNotes then outstanding, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the one hundred twenty (120) Trading Day (as defined in the Warrants) anniversary of the Applicable Date (provided that such period shall be extended by the number of calendar days Trading Days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure existsuse) (the “"Restricted Period”"), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “"equity security” " (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “"Subsequent Placement”"). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (iA) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (iA) do not, in the aggregate, exceed more than 205% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Note) and (3) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.to
Appears in 1 contract
Samples: Execution Copy Securities Purchase Agreement (Socket Mobile, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or Notes. Unless otherwise agreed upon in writing by the Warrants. The Company agrees that Buyers, for the period commencing on the date hereof and ending on the date immediately following the 90th Trading Day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers officers, consultants or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 205% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions that certain Common Stock Purchase Agreement and Registration Rights Agreement with Tumim Stone Capital dated November 8, 2022 and any subsequent equity line of credit mutually agreed upon with Tumim Stone Capital (the “Permitted Equity Line”); (iv) 454,576 shares of Common Stock and warrants to purchase 454,576 shares of Common Stock pursuant to the terms of those certain notes which converted on August 30, 2022; (v) shares of Common Stock and warrants to purchase shares of Common Stock to be issued in connection with a private placement convertible notes of up to $1,500,000 proceeds at a price per share not less than $2.40 and an additional $3,750,000 upon the exercise of all warrants; (vi) 591,000 shares of Common Stock and 147,750 warrants to purchase shares of Common Stock issued in connection with a private placement on February 10, 2023 for proceeds of $591,000 and an additional $147,750 upon the exercise of all warrants; (vii) any shares of Common Stock issued or issuable in connection with any bona fide strategic or commercial alliances, acquisitions, mergers, licensing arrangements, and strategic partnerships, provided, that (x) the primary purpose of such issuance is not to raise capital as reasonably determined, and (y) the purchaser or acquirer or recipient of the securities in such issuance solely consists of either (I) the actual participants in such strategic or commercial alliance, strategic or commercial licensing arrangement or strategic transactionsor commercial partnership, provided that (II) the actual owners of such assets or securities are issued as “restricted securities” acquired in such acquisition or merger or (as defined III) the stockholders, partners, employees, consultants, officers, directors or members of the foregoing Persons, in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth hereineach case, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset asset, in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, and (1z) but the number or amount of securities issued to such Persons by the Company shall not include a transaction be disproportionate to each such Person’s actual participation in which (or fair market value of the Company is issuing contribution to) such strategic or commercial alliance or strategic or commercial partnership or ownership of such assets or securities primarily for to be acquired by the purpose of raising capital or to an entity whose primary business is investing in securities Company, as applicable and (2viii) all such issuances after the date hereof pursuant to this clause (vi) do notConversion Shares, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (viiviii), collectively the “Excluded Securities”) and (ix) subject to the Company’s compliance with Section 10 of the Note (including, without limitation, the issuances of Subsequent Warrants (as defined in the Note) to the Buyers in connection therewith as required thereunder, if applicable), any bone fide public offering of Common Stock and/or Options of the Company. “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, consultant, officer or director for services provided to the Company in their capacity as such.
Appears in 1 contract
Samples: Amendment and Exchange Agreement (Gaucho Group Holdings, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any SecuritiesNotes, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the WarrantsNotes. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 90th Trading Day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k4(m) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 205% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) at any time the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereofNotes remain outstanding, (vA) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares registered offering of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off and/or Options (as defined in the Notes) in which all or a portion of the net proceeds will be used to redeem the Notes in full in accordance with the terms of the Notes then in effect (a “Note Redemption Offering”) or (B) a private offering of securities in which all or, solely if after such offering no Notes remain outstanding, a portion of the net proceeds, as applicable, will be used to redeem the Notes in full in accordance with the terms of the Notes then in effect and (viiv) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require connection with any strategic acquisition or permit the filing transaction whether through an acquisition of stock or a merger of any registration statement in connection therewith during business, assets or technologies the prohibition period set forth herein primary purpose of which is not to raise equity capital (each of the foregoing in clauses (i) through (viiv), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the later of (x) October 1, 2017 and (y) the date immediately following on which the Applicable Date (provided that such period shall be extended Note and all other Indebtedness of the Company or any of its Subsidiaries held by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective Investor or any prospectus contained therein of its affiliates is not available for use or any Current Public Information Failure exists) no longer outstanding (such period, the “"Restricted Period”"), without the prior written consent of the Investor (which may be granted or withheld in the Investor's sole discretion), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “"equity security” " (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below)Securities, any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “"Subsequent Placement”"). Notwithstanding the foregoing, this Section 4(k4(j) shall not apply in respect of the issuance of (i) shares of Common Stock Shares or standard options to purchase Common Stock Shares to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 20% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Note) and (3) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the BuyersInvestor; (ii) shares of Common Stock Shares issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock Shares issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock Shares issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not loweredlowered by amending the terms of such Convertible Securities, none of such Convertible Securities (other than standard options to purchase Common Stock Shares issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock Shares issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the BuyersInvestor; (iii) Common Shares or Convertible Securities (or Common Shares issued upon conversion of such Convertible Securities) issued to the Conversion SharesInvestor, or its designee(s), pursuant to any agreement between the Company and the Investor (or any affiliate thereof); provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, and (iv) the Warrant Shares; providedCommon Shares or Convertible Securities (including, that the terms of the Warrants are not amendedwithout limitation, modified or changed on or after the date hereof, (vconvertible debt securities) issued in connection with any Common Stock issued or issuable by transaction involving the Company on and any one or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); providedmore of its affiliates, that the terms Subsidiaries, or any of the Permitted Subsequent Placement are not amended, modified their respective officers or changed on directors or after the date hereof, (vi) shares affiliates of Common Stock issued pursuant to acquisitions officers or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business directors of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (viiiv), collectively the “"Excluded Securities”"). “"Approved Stock Plan” " means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock Shares and standard options to purchase Common Stock Shares may be issued to any employee, officer or director for services provided to the Company in their capacity as such. The Investor shall be entitled to obtain injunctive relief against the Company and its Subsidiaries to preclude any breach of this Section 4(j), which remedy shall be in addition to any right to collect damages.
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the Applicable one hundred eighty (180) day anniversary of the Closing Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any the Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure existsuse) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (iA) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Share Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (iA) do not, in the aggregate, exceed more than 205% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiB) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance conversion price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.of
Appears in 1 contract
Samples: Securities Purchase Agreement (Ecoblu Products, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following 30th calendar day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”)Minimum Holding Date, neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), 1000 Xxx) or any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during in the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”July 2021 SPA). Notwithstanding the foregoing, this Section 4(k4(b)(xvi) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined belowin the July 2021 SPA), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 2010% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the BuyersHolder; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the BuyersHolder; (iii) the Conversion Shares; providedShares (as defined in the July 2021 SPA), that the terms of the Notes are not amended, modified or changed on or after the date hereof, and (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement Shares (as defined in the WarrantsJuly 2021 SPA); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” August Warrant Shares (as defined in Rule 144) that certain Warrant Exercise Agreement, dated as of August 18, 2021), the September Warrant Shares (as defined in that certain Warrant Exercise Agreement dated as of September 1, 2021 by and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of between the Company and shall provide to the Company additional benefits in addition to Holder, as amended), the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off November Warrant Shares (as defined in the NotesNovember 2021 WEA) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” the December Warrant Shares (as defined in Rule 144the December 2021 WEA) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (viiiv), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.. 11
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date sixty-first (61st) day immediately following the Applicable Closing Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any the Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure existsuse) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act)), any Convertible Securities (as defined below)Securities, any debt, any preferred stock or any purchase rights) rights (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k4(j) shall not apply in respect of the issuance of (iA) shares of Common Stock or standard options to purchase Common Stock to directors, officers officers, employees or employees consultants of the Company in their capacity as such pursuant to an Approved Stock Share Plan (as defined below) (it being expressly understood and agreed for all purposes of this Agreement that lawyers, law firms, accountants and accounting firms do not constitute consultants), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 20% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Note) and (3) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiB) shares of Common Stock issued upon the conversion conversion, exercise or exercise exchange of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance exchange (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.to
Appears in 1 contract
Samples: Securities Purchase Agreement (Biostar Pharmaceuticals, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any SecuritiesPreferred Shares or Warrants, the Company will not, without the prior written consent of the Required Holders, directly or indirectly, issue (i) from the Closing Date until the 18 months anniversary of the Closing Date, any Notes shares of Common Stock or any Convertible Securities at a purchase price or conversion price, as applicable, below the applicable Conversion Price (other than to as defined in the Buyers as contemplated herebyCertificate of Designations) and until an aggregate of eighty percent (80%) of the Company shall not issue Preferred Shares have been converted into shares of Common Stock or (ii) any other securities that would cause a breach or default under the Notes Certificate of Designations or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the Applicable Date (provided that such period shall be extended by 180th day after the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”)Closing Date, neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) ), is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock or other awards convertible, exercisable for or exchangeable for shares of Common Stock issued or issuable to directors, officers consultants, officers, employees or employees other service providers of the Company for services rendered to the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such optionsawards) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 2012% of the shares of Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, lowered and none of such options are amended to increase the number of shares issuable thereunder and none or extend the term of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyersoptions; (ii) Convertible Securities and/or shares of Common Stock issued or issuable upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock or other awards convertible, exercisable for or exchangeable for Common Stock issued or issuable pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase shares of Common Stock or other awards convertible, exercisable for or exchangeable for shares of Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock or other awards convertible, exercisable for or exchangeable for shares of Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock those issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that materially adversely affects any of the Buyers; (iii) the Conversion Preferred Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Conversion Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) the Dividend Shares; (vi) the Warrant Shares and any other securities issued or issuable pursuant to this Agreement or any of the Transaction Documents, including, without limitation, any shares of Common Stock issued or issuable pursuant to Section 9 of the Certificate of Designations, and (vi) securities issued as consideration for the acquisition of another entity by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); providedby merger, that the terms purchase of substantially all of the Permitted Subsequent Placement are not amendedassets or other reorganization or bona fide joint venture agreement, modified or changed on or after provided that such issuance is approved by the date hereof, (vi) shares majority of Common Stock issued pursuant to acquisitions or strategic transactions, the disinterested directors of the Company and provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein Restricted Period (each of the foregoing in clauses (i) through (viivi), collectively the “Excluded Securities”) and (vii) provided the Equity Conditions (as defined in the Certificate of Designations) are then satisfied and the closing price of the Common Stock on the Trading Market equals or exceeds 200% of the initial Conversion Price (as defined in the Certificate of Designations) for three consecutive Trading Days, sales of shares of Common Stock or Convertible Securities at a per share purchase price in excess of the greater of (a) 160% of the initial Conversion Price (as defined in the Certificate of Designations) or the Closing Sale Price for the previous Trading Day (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations and similar events; provided that if 90% of the aggregate Stated Value (as defined in the Certificate of Designations) of the Preferred Shares has been paid in full to the Buyers or otherwise converted to Common Stock, then the Company may sell shares of Common Stock at a per share purchase price in excess of the greater of (a) 130% of the exercise price of the Warrants). or the Closing Sale Price for the previous Trading Day. “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase or other awards convertible, exercisable for or exchangeable for shares of Common Stock may be issued to any employee, officer officer, director or director other service provider for services provided to the Company and/or a Subsidiary in their capacity as such.
Appears in 1 contract
Samples: Securities Purchase Agreement (Wrap Technologies, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the Applicable Date ninetieth (90th) day anniversary of the date hereof (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any the Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure existsuse) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity Common Stock or any security or any debt or other instrument convertible or exchangeable or exercisable into Common Stock or which constitutes (or would constitute but for lack of a fixed exercise or conversion or similar price or if it were not solely cash settled) a “derivative security” (as defined under the rules and regulations under Section 16 of the 0000 Xxx) or otherwise an equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), 0000 Xxx) or which does or would otherwise constitute any Option or Convertible Securities Security (as defined below), any debt, any preferred stock or any purchase rightsin the Warrants) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, the immediately preceding sentence in this Section 4(k4(j) shall not apply in respect of the issuance of (iA) shares of Common Stock or standard options to purchase Common Stock or other standard equity linked securities (e.g., stock appreciation rights) to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Share Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (iA) do not, in the aggregate, exceed more than 202% of the shares of Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Note) and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiB) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance conversion price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase lowered beyond the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable price determined by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spinanti-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.dilution provision in
Appears in 1 contract
Samples: Securities Purchase Agreement (Geoglobal Resources Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following 30th calendar day after the Applicable Closing Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), 1000 Xxx) or any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during in the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”January SPA). Notwithstanding the foregoing, this Section 4(k4(b)(xviii) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined belowin the January SPA), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 2010% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) date hereof and (32) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the BuyersHolder; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the BuyersHolder; (iii) the Conversion Shares; providedShares (as defined in the January SPA), that the terms of the Notes are not amended, modified or changed on or after the date hereof, and (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement Shares (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144January SPA) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein June Warrant Shares (each of the foregoing in clauses (i) through (viiiv), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated herebyi) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for (x) the period commencing on the date hereof and ending on the date immediately following the Applicable 90th calendar day after the Initial Closing Date, (y) the period commencing on the First Subsequent Closing Determination Date and ending on the date immediately following the 30th calendar day after the First Subsequent Closing Date and (z) the period commencing on the Second Subsequent Closing Determination Date and ending on the date immediately following the 30th calendar day after the Second Subsequent Closing Date (provided that each such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the period, a “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or register or amend any outstanding registration statements or file any shelf registration statements or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debtSecurities, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k4(j)(i) shall not apply (A) during a Restricted Period in respect of the issuance of (i) shares the issuance of Common Stock Options or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Convertible Securities issued under any Approved Stock Plan (Plan, so long as defined below), provided that (1) such securities are the aggregate number of shares issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, thereto does not exceed more than 205% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Note) and (3) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, (ii) the filing of a shelf registration statement on Form S-3 with the SEC concurrently with one of the Resale Registration Statement (as defined below), provided that the conversionno offers or sales under such registration statement shall take place during a Restricted Period, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion issuances of Underlying Shares; provided, that (B) during the terms period commencing thirty (30) days after the effectiveness of the Notes are not amended, modified or changed on or after Resale Registration Statement for the Initial Purchased Securities and ending upon the termination of the Restricted Period that commenced upon the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior with respect to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant offered or sold in an offering of solely Common Stock for the purpose of raising capital at a price per share in excess of one hundred twenty percent (120%) of the exercise price of the Initial Purchased Warrant, (C) to acquisitions or strategic transactions, provided that such securities are Common Stock issued as “restricted securities” (as defined consideration in Rule 144) and carry no registration rights that require or permit acquisitions approved by the filing Board of any registration statement in connection therewith during the prohibition period set forth herein, and Directors; provided that any such issuance shall only be to a Person (or to the equityholders equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities securities; and provided further that such Common Stock is subject to restrictions on transfer during the Restricted Period and are not registered for resale during the Restricted Period or (2D) all such issuances after the issuance of shares during the Restricted Periods commencing on the First Subsequent Closing Determination Date or the Second Subsequent Closing Determination Date pursuant to any “at-the-market” program within the meaning of Rule 415(a)(4) of the Securities Act in effect as of the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as hereof. An “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the Applicable Date ninety (90) day anniversary of the date hereof (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any the Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure existsuse) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity Common Stock or any security or any debt or other instrument convertible or exchangeable or exercisable into Common Stock or which constitutes (or would constitute but for lack of a fixed exercise or conversion or similar price or if it were not solely cash settled) a “derivative security” (as defined under the rules and regulations under Section 16 of the 1000 Xxx) or otherwise an equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), 1000 Xxx) or which does or would otherwise constitute any Option or Convertible Securities Security (as defined below), any debt, any preferred stock or any purchase rightsin the Warrants) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafterPeriod) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, the immediately preceding sentence in this Section 4(k4(j) shall not apply in respect of the issuance of (iA) shares of Common Stock or standard options to purchase Common Stock or other standard equity linked securities (e.g., stock appreciation rights) to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Share Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (iA) do not, in the aggregate, exceed more than 20% 500,000 shares of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Note) and (32) the exercise price of any such options is not lowered, other than for standard anti-dilution provisions such as stock dividends or stock splits, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiB) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) aboveabove which shall also be allowed) issued prior to the date hereofhereof (including the 8% Convertible Promissory Notes issued pursuant to the Securities Purchase Agreement, dated March 29, 2012 (the “JGB Convertible Notes”), provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance conversion price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) is not loweredlowered (other than as required by the terms of the Convertible Securities), none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) above) are amended to increase the number of shares issuable thereunder other than for standard anti-dilution provisions such as stock dividends or stock splits and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (iA) aboveabove which shall also be allowed) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiiC) the Conversion Warrants; (D) the Warrant Shares; provided(E) equity to a seller, that or in the terms case of a merger, the shareholders of the Notes are not amendedtarget company in such merger, modified or changed the officers or employees thereof, in each case in connection with a bona fide merger, business combination transaction or acquisition of stock or assets outside of the ordinary course; (F) a stock split or other subdivision or combination, or a stock dividend made to all holders of any Company equity on a pro rata basis; (G) equity in connection with bona fide strategic partnership or joint venture transactions; (H) beginning sixty (60) days after the date hereof, (iv) the Warrant Sharesshares of Common Stock and Warrants to individual, institutional or strategic investors in private placement transactions; provided, that the terms (x) such issuances are for a consideration per share of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by of no less than $0.75 and (y) the Company on does not grant or prior enter into any agreement to grant such investors registration rights whereby the Closing Company would have an obligation to register the resale of such shares of Common Stock during the Restricted Period; (I) shares of Common Stock or Convertible Securities for cash to individual, institutional or strategic investors, provided that (x) in a Permitted Subsequent Placement the case of any such issuance of any shares of Common Stock, no share of Common Stock shall be sold for an amount per share in cash less than the Exercise Price (as defined in the Warrants); provided) in effect at the time of such issuance thereof and (y) in the case of any such issuance of any Convertible Security, that the terms conversion price of such Convertible Security shall not be less than the Permitted Subsequent Placement are not amended, modified Exercise Price in effect at the time of such issuance thereof or changed on or after the date hereof, (viJ) either (i) up to 3,000,000 shares of Common Stock or warrants exercisable for up to 3,000,000 shares of common stock or (ii) warrants exercisable for up to 6,000,000 shares of Common Stock, in each case, in a private placement transaction issued pursuant in connection with an up to acquisitions or strategic transactions$26 million debt transaction; provided, provided that (x) the proceeds from such securities are issued as “restricted securities” debt transaction will be used to pay off the JGB Convertible Notes, (as defined in Rule 144y) and carry no registration rights that require or permit the filing exercise price of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, warrants in the aggregate, exceed more event of issuance under J(ii) is no less than 10% market price of the Common Stock issued and outstanding immediately following at the Spin-Off (as defined in time of the Notes) issuance of such warrants and (viiz) as set forth in Schedule 4(k), provided that the Company does not grant or enter into any agreement to grant such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no investors registration rights that require or permit whereby the filing Company would have an obligation to register the resale of any registration statement in connection therewith such shares of Common Stock during the prohibition period set forth herein Restricted Period (each of the foregoing in clauses (iA) through (viiJ), collectively the “Excluded Securities”). “Approved Stock Share Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer director or director consultants for services provided to the Company in their capacity as such.
Appears in 1 contract
Samples: Securities Purchase Agreement (Elephant Talk Communications Corp)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the Applicable sixty (60) Trading Day anniversary of the Initial Closing Date (provided that such period shall be extended by the number of calendar days Trading Days during such period and any extension thereof contemplated by this proviso on which any the Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure existsuse) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debtSecurities, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k4(j) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers officers, employees or employees consultants of the Company or any of its Subsidiaries in their capacity as such pursuant to an Approved Stock Share Plan (as defined below) (it being expressly understood and agreed that lawyers, law firms, accountants, accounting firms and other similar professional advisors and professional advisory firms are not consultants), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2A) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 20% 750,000 shares of the Common Stock issued (adjusted for stock splits, stock combinations and outstanding immediately following the Spin-Off (as defined in the Noteother similar transactions) and (3B) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance conversion price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Share Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided a bona fide firm commitment underwritten public offering with a nationally recognized underwriter that such securities are issued as generates gross proceeds to the Company in excess of $25,000,000 (but expressly excluding “restricted securitiesat-the-market offerings” (as defined in Rule 144415(a)(4) under the 0000 Xxx) and carry no registration rights that require or permit the filing “equity lines of any registration statement credit”); (iv) shares of Common Stock issued in connection therewith during the prohibition period set forth hereinwith strategic alliances, strategic mergers and acquisitions and strategic partnerships, provided that any (A) the primary purpose of such issuance shall only be is not to a Person raise capital as determined in good faith by the Buyers, (B) the purchaser or to the equityholders acquirer of a Person) which is, itself or through its subsidiaries, an operating company or an owner such shares of an asset Common Stock in a business synergistic with the business such issuance solely consists of the Company and shall provide to the Company additional benefits in addition to the investment of funds, either (1) but the actual participants in such strategic alliance or strategic partnership, (2) the actual owners of such assets or securities acquired in such merger or acquisition or (3) the stockholders, partners or members of the foregoing Persons, (C) the number or amount (as the case may be) of such shares of Common Stock issued to such Person by the Company shall not include a transaction be disproportionate to such Person’s actual participation in which such strategic alliance or strategic partnership or ownership of such assets or securities to be acquired by the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities (as applicable) and (2D) all such issuances of Common Stock after the date hereof pursuant to this clause (viiv) do not, in the aggregate, exceed more than 10% 2,000,000 shares of the Common Stock (adjusted for stock splits, stock combinations and other similar transactions); (v) standard warrants to purchase Common Stock and the shares of Common Stock issuable upon exercise of such warrants issued solely to placement agents solely as compensation for services rendered to the Company in their capacity as such in connection with a Subsequent Placement, provided that (A) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such warrants) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 750,000 shares of Common Stock (adjusted for stock splits, stock combinations and outstanding immediately following other similar transactions), (B) the Spin-Off exercise price of any such warrants is not lower than the Exercise Price (as defined in the NotesWarrants) and (C) the exercise price of any such warrants is not lowered, none of such warrants are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such warrants are otherwise materially changed in any manner that adversely affects any of the Buyers; (vi) the Common Shares, (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(ithe Warrants and (viii) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein Warrant Shares (each of the foregoing in clauses (i) through (viiviii), collectively the “Excluded Securities”). “Approved Stock Share Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer officer, director or director consultant for services provided to the Company or any of its Subsidiaries in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Samples: Securities Purchase Agreement (Kandi Technologies Group, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated herebyi) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the Applicable thirtieth (30th) calendar day after the Closing Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall shall, directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or register or amend any outstanding registration statements or file any shelf registration statements or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debtSecurities, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k4(j)(i) shall not apply during the Restricted Period in respect of (A) the issuance, offer, sale, grant or other disposition of any securities in connection with Project Level Financing, (B) the issuance of (i) shares of Common Stock Stock, Options or standard options Convertible Securities pursuant to purchase Common Stock existing agreements entered into prior to directorsthe date hereof (without giving effect to any amendment thereto made after the date hereof), officers including issuances pursuant to Options or employees Convertible Securities outstanding as of the Company in their capacity as such pursuant date hereof (without giving effect to any amendment thereto made after the date hereof), an Approved Stock Plan ATM Agreement (as defined below), provided that (1) such securities are issued or any Approved Stock Plan as “restricted securities” (in effect as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant (without giving effect to this clause (i) do not, in the aggregate, exceed more than 20% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Note) and (3) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is amendment thereto made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof) or grants or awards made under an Approved Stock Plan, (ivC) the Warrant Shares; provided, that the terms issuances of the Warrants are not amended, modified Note Shares or changed on or after the date hereof, (vD) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”)Prospectus Supplement. “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 1 contract
Samples: Securities Purchase Agreement (Tellurian Inc. /De/)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will shall not, without the prior written consent of the Required HoldersHolders (as defined below), issue any Notes Purchased Securities (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or Purchased Securities. Unless otherwise agreed upon in writing by the Warrants. The Company agrees that Required Holders, for the period commencing on the date hereof Subscription Date and ending on the date immediately following the ninetieth (90th) Trading Day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure existsuse) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option Option or right to purchase, or otherwise dispose of (of, or announce any issuance, offer, sale, grant of any option Option or right to purchase purchase, or other disposition of) , any equity security or any equity-linked or related security (security, including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Securities Act), any stock or other security (other than Options) that is, at any time and under any circumstances, directly or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any shares of Common Stock (collectively, “Convertible Securities (as defined belowSecurities”), any debt, any preferred stock or any purchase rights) rights (any such issuance, offer, sale, grant, disposition or announcement (announcement, whether occurring during the Restricted Period or at any time thereafter) , is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options Options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2A) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such optionsOptions) after the date hereof Subscription Date pursuant to this clause (i) do not, in the aggregate, exceed more than 20% ten percent (10%) of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined in the Note) Subscription Date, and (3B) the exercise price of any such options Options is not lowered, none of such options Options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options Options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities or Options (other than standard options Options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereofSubscription Date, provided that the conversion, exercise exercise, or other method of issuance (as the case may be) of any such Convertible Security or Option is made solely pursuant to the conversion, exercise exercise, or other method of issuance (as the case may be) provisions of such Convertible Security or Option that were in effect on the date immediately prior to the date of this AgreementSubscription Date, the conversion, exercise exercise, or issuance price of any such Convertible Securities or Options (other than standard options Options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities or Options (other than standard options Options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder thereunder, and none of the terms or conditions of any such Convertible Securities or Options (other than standard options Options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, and (iv) securities issued pursuant to acquisitions, divestitures, licenses, partnerships, collaborations, or strategic transactions approved by the Warrant Shares; provided, that the terms Company’s board of directors or a majority of the Warrants are not amendedmembers of a committee of directors established for such purpose, modified which acquisitions, divestitures, licenses, partnerships, collaborations, or changed on or after the date hereof, (v) any Common Stock issued or issuable by the Company on or prior to the Closing in strategic transactions can have a Permitted Subsequent Placement Variable Rate Transaction (as defined in the Warrants); providedbelow) component, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (viiiv), collectively the “Excluded Securities”). “Approved Stock Plan” means any stock incentive plan or other employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to Subscription Date, which shares provides for the grant of Common Stock and standard options to purchase Common Stock may be issued equity awards to any employee, officer or director for services provided to the Company in their capacity as such. “Variable Rate Transaction” means a transaction in which the Company or any Subsidiary (A) issues or sells any Convertible Securities or Options either (1) at a conversion, exercise, or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such Convertible Securities or Options, or (2) with a conversion, exercise, or exchange price that is subject to being reset at some future date after the initial issuance of such Convertible Securities or Options or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock, other than pursuant to a customary anti-dilution provision, or (B) enters into any agreement (including, without limitation, an equity line of credit or an “at-the-market” offering) whereby the Company or any Subsidiary may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights). Each Buyer shall be entitled to obtain injunctive relief against the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages.
Appears in 1 contract
Samples: Securities Purchase Agreement (Alternus Clean Energy, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any SecuritiesDuring the period commencing on the date hereof and ending on the date no Notes remain outstanding, the Company will not, without the prior written consent of Buyers holding a majority in aggregate principal amount of the Required HoldersNotes then outstanding, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the WarrantsNotes. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 180th calendar day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k4(n) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, (2) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, in any two year period after the date hereof, exceed more than 203% of the Common Stock issued and outstanding immediately following prior to the Spin-Off (as defined date hereof in the Note) any two year period and (32) except as provided for in accordance with the terms thereof in effect on the date hereof, the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not loweredlowered (other than adjustments provided for in accordance with the terms of such Convertible Securities in effect on the date hereof), none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii) the Conversion Shares; provided, that the terms of the Notes are not amended, modified or changed on or after the date hereof, (iv) the Warrant Shares; provided, that the terms of the Warrants are not amended, modified or changed on or after the date hereof, Shares and (v) any Common Stock issued or issuable by the Company on or prior to the Closing in a Permitted Subsequent Placement (as defined in the Warrants); provided, that the terms of the Permitted Subsequent Placement are not amended, modified or changed on or after the date hereof, (vi) shares of Common Stock issued pursuant to acquisitions or strategic transactions, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, (1) but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (2) all such issuances after the date hereof pursuant to this clause (vi) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately following the Spin-Off (as defined in the Notes) and (vii) as set forth in Schedule 4(k), provided that such securities set forth in Schedule 4(k)(i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth herein (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.Stock
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