Common use of Dilutive Issuance Clause in Contracts

Dilutive Issuance. If the Borrower, at any time while this Note or any amounts due hereunder are outstanding, issues, sells or grants (or has issued, sold or granted as of the Issue Date, as the case may be) any option to purchase, or sells or grants any right to reprice, or otherwise disposes of, or issues (or has sold or issued, as the case may be, or announces any sale, grant or any option to purchase or other disposition), any Common Stock or other securities convertible into, exercisable for, or otherwise entitle any person or entity the right to acquire, shares of Common Stock (including, without limitation, upon conversion of this Note, and any convertible notes or warrants outstanding as of or following the Issue Date), in each or any case at an effective price per share that is lower than the then Conversion Price (such lower price, the “Base Conversion Price” and such issuances, collectively, a “Dilutive Issuance”) (it being agreed that if the holder of the Common Stock or other securities so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share that is lower than the Conversion Price, such issuance shall be deemed to have occurred for less than the Conversion Price on such date of the Dilutive Issuance), then the Conversion Price shall be reduced, at the option of the Holder, to a price equal to the Base Conversion Price, provided that the Excluded Issuances (as defined in the Warrants) shall not be deemed a Dilutive Issuance. Such adjustment shall be made whenever such Common Stock or other securities are issued. By way of example, and for the avoidance of doubt, if the Company issues a convertible promissory note (including but not limited to a Variable Rate Transaction (as defined in the Purchase Agreement)), and the holder of such convertible promissory note has the right to convert it into Common Stock at an effective price per share that is lower than the then Conversion Price (including but not limited to a conversion price with a discount that varies with the trading prices of or quotations for the Common Stock), then the Holder has the right to reduce the Conversion Price to such Base Conversion Price (including but not limited to a conversion price with a discount that varies with the trading prices of or quotations for the Common Stock) in perpetuity regardless of whether the holder of such convertible promissory note ever effectuated a conversion at the Base Conversion Price. In the event of an issuance of securities involving multiple tranches or closings, any adjustment pursuant to this Section 1.6(e) shall be calculated as if all such securities were issued at the initial closing.

Dilutive Issuance. If the BorrowerCompany, at any time while this Note during the Pricing Period or any amounts due hereunder are outstandingseven (7) Business Days following the delivery of a Drawdown Notice, issues, sells or grants (or has issued, sold or granted as of the Issue Date, as the case may be) any option to purchase, or sells or grants any right to reprice, or otherwise disposes of, or issues (or has sold or issued, as the case may be, or announces any sale, grant or any option to purchase or other disposition), any Common Stock or other securities convertible into, exercisable for, or otherwise entitle any person or entity the right to acquire, shares of Common Stock (including, without limitation, upon conversion of this Note, and any convertible notes or warrants outstanding as of or following the Issue Date), in each or any case Equivalents at an effective price per share that is lower than the then Conversion Purchase Price (such lower price, the “Base Conversion Drawdown Price” and such issuances, collectively, a “Dilutive Issuance”) (it being agreed that if the holder of the Common Stock or other securities so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share that is lower than the Conversion Price, such issuance shall be deemed to have occurred for less than the Conversion Price on such date of the Dilutive Issuance), then the Conversion Purchase Price shall be reduced, at the option of the HolderInvestor, to a price equal to the Base Conversion Drawdown Price, provided that the Excluded Issuances (as defined in the Warrants) shall not be deemed a Dilutive Issuance. Such adjustment to the Purchase Price shall be made whenever such Common Stock or other securities are issued. By way effected through the issuance by the Company to the Investor of example, that number of additional shares (the “Drawdown Notice Dilution Shares”) equal to the difference between the number of Drawdown Notice Shares and for what the avoidance number of doubt, Drawdown Notice Shares would have been if the Company issues a convertible promissory note Drawdown Notice had been made at the adjusted Base Drawdown Price. Such Drawdown Notice Dilution Shares shall be issued at the Investor’s option either: (including but not limited i) at the next subsequent Drawdown Notice Date pursuant to a Variable Rate Transaction Drawdown Notice delivered by the Company, or (as defined ii) in the Purchase Agreement))event that more than ten (10) Business Days have passed since the last Drawdown Notice Date or the relevant Dilutive Issuance, and within three (3) Business Days following delivery to the holder Company by Investor of such convertible promissory note has Investor’s invoice requesting issuance of the right to convert it into Common Stock at an effective price per share that is lower than the then Conversion Price (including but not limited to a conversion price with a discount that varies with the trading prices of or quotations for the Common Stock), then the Holder has the right to reduce the Conversion Price to such Base Conversion Price (including but not limited to a conversion price with a discount that varies with the trading prices of or quotations for the Common Stock) in perpetuity regardless of whether the holder of such convertible promissory note ever effectuated a conversion at the Base Conversion Pricerelevant Drawdown Notice Dilution Shares. In the event of an issuance of securities involving multiple tranches or closings, any adjustment pursuant to this Section 1.6(e) 2.3 shall be calculated as if all such securities were issued at the initial closing. For the avoidance of doubt, each adjustment or readjustment of the Purchase Price as a result of the events described in this Section 2.3 of this Agreement shall occur without any action by the Investor. Notwithstanding the foregoing, no adjustment will be made under this Section 2.3 in respect of an Exempt Issuance. An “Exempt Issuance” shall mean the issuance of (a) shares of Common Stock or other securities to officers or directors of the Company pursuant to any stock or option or similar equity incentive plan duly adopted for such purpose and in effect as of the date of this Agreement; (b) securities issued pursuant to a merger, consolidation, acquisition or similar business combination, 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; or (c) securities issued with respect to which the Investor waives its rights in writing under this Section 2.3.

Dilutive Issuance. If the BorrowerIf, at any time while when this Note is issued and outstanding, the Borrower issues or sells, or in accordance with this section hereof is deemed to have issued or sold, any shares of Common Stock for no consideration or for a consideration per share (before deduction of reasonable expenses or commissions underwriting discounts or allowances in connection therewith) less than the Conversion Price in effect on the date of such issuance (or deemed issuance) of such shares of Common Stock (a “Dilutive Issuance”), then immediately upon the Dilutive Issuance, the Conversion Price will be reduced to the amount of the consideration per share received by the Borrower in such Dilutive Issuance. Such adjustments described above to the Conversion Price shall be permanent (subject to additional adjustments under this section). In the event that Borrower (or any amounts due hereunder subsidiary) shall take any action to which the provisions hereof are outstandingnot strictly applicable, issuesor, sells if applicable, would not operate to protect Holder from dilution or grants (or has issued, sold or granted as if any event occurs of the Issue Datetype contemplated by the provisions of this Section but not expressly provided for by such provisions (including, without limitation, the granting of stock appreciation rights, phantom stock rights or other rights with equity features), then Borrower’s board of directors shall in good faith determine and implement an appropriate adjustment in the Conversion Price so as to protect the case may be) rights of Lender, provided that no such adjustment pursuant to this Section will increase the Conversion Price. The Borrower shall be deemed to have issued or sold shares of Common Stock if the Borrower in any option to purchase, or sells manner issues or grants any right warrants, rights or options (not including employee stock option plans), whether or not immediately exercisable, to reprice, subscribe for or otherwise disposes of, or issues (or has sold or issued, as the case may be, or announces any sale, grant or any option to purchase or other disposition), any Common Stock or other securities convertible into, exercisable for, into or otherwise entitle any person or entity the right to acquire, shares of exchangeable for Common Stock (including“Convertible Securities”) (such warrants, without limitation, upon conversion of this Note, rights and any convertible notes options to purchase Common Stock or warrants outstanding Convertible Securities are hereinafter referred to as of or following “Options”) and the Issue Date), in each or any case at an effective price per share that is lower than the then Conversion Price (such lower price, the “Base Conversion Price” and such issuances, collectively, a “Dilutive Issuance”) (it being agreed that if the holder of the for which Common Stock or other securities so issued shall at any time, whether by operation is issuable upon the exercise of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share that Options is lower than the Conversion Price, such issuance shall be deemed to have occurred for less than the Conversion Price on such date of the Dilutive Issuance)then in effect, then the Conversion Price shall be reducedequal to such price per share. For purposes of the preceding sentence, the “price per share for which Common Stock is issuable upon the exercise of such Options” is determined by dividing (i) the total amount, if any, received or receivable by the Borrower as consideration for the issuance or granting of all such Options, plus the minimum aggregate amount of additional consideration, if any, payable to the Borrower upon the exercise of all such Options, plus, in the case of Convertible Securities issuable upon the exercise of such Options, the minimum aggregate amount of additional consideration payable upon the conversion or exchange thereof at the option time such Convertible Securities first become convertible or exchangeable, by (ii) the maximum total number of shares of Common Stock issuable upon the Holderexercise of all such Options (assuming full conversion of Convertible Securities, to a price equal if applicable). No further adjustment to the Base Conversion Price, provided that the Excluded Issuances (as defined in the Warrants) shall not be deemed a Dilutive Issuance. Such adjustment shall Price will be made whenever upon the actual issuance of such Common Stock upon the exercise of such Options or other securities are issuedupon the conversion or exchange of Convertible Securities issuable upon exercise of such Options. By way Additionally, the Borrower shall be deemed to have issued or sold shares of example, and for the avoidance of doubt, Common Stock if the Company Borrower in any manner issues a convertible promissory note (including but or sells any Convertible Securities, whether or not limited to a Variable Rate Transaction (as defined in the Purchase Agreement))immediately convertible, and the holder of such convertible promissory note has the right to convert it into Common Stock at an effective price per share that for which Common Stock is lower issuable upon such conversion or exchange is less than the then Conversion Price (including but not limited to a conversion price with a discount that varies with the trading prices of or quotations for the Common Stock)then in effect, then the Holder has Conversion Price shall be equal to such price per share. For the right purposes of the preceding sentence, the “price per share for which Common Stock is issuable upon such conversion or exchange” is determined by dividing (1) the total amount, if any, received or receivable by the Borrower as consideration for the issuance or sale of all such Convertible Securities, plus the minimum aggregate amount of additional consideration, if any, payable to reduce the Borrower upon the conversion or exchange thereof at the time such Convertible Securities first become convertible or exchangeable, by (2) the maximum total number of shares of Common Stock issuable upon the conversion or exchange of all such Convertible Securities. No further adjustment to the Conversion Price to such Base Conversion Price (including but not limited to a conversion price with a discount that varies with will be made upon the trading prices of or quotations for the Common Stock) in perpetuity regardless of whether the holder actual issuance of such convertible promissory note ever effectuated a Common Stock upon conversion at the Base Conversion Price. In the event or exchange of an issuance of securities involving multiple tranches or closings, any adjustment pursuant to this Section 1.6(e) shall be calculated as if all such securities were issued at the initial closingConvertible Securities.

Dilutive Issuance. If the Borrower, at any time while this Note or any amounts due hereunder are outstanding, issues, sells or grants (or has issued, sold or granted as of the Issue Date, as the case may be) any option to purchase, or sells or grants any right to reprice, or otherwise disposes of, or issues (or has sold or issued, as the case may be, or announces any sale, grant or any option to purchase or other disposition), any Common Stock or other securities convertible into, exercisable for, or otherwise entitle any person or entity the right to acquire, shares of Common Stock (including, without limitation, upon conversion of this Note, and any convertible notes or warrants outstanding as of or following the Issue Date), in each or any case at an effective price per share that is lower than the then Conversion Price (such lower price, the “Base Conversion Price” and such issuances, collectively, a “Dilutive Issuance”) (it being agreed that if the holder of the Common Stock or other securities so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share that is lower than the Conversion Price, such issuance shall be deemed to have occurred for less than the Conversion Price on such date of the Dilutive Issuance), then the Conversion Price shall be reduced, at the option of the Holder, to a price equal to the Base Conversion Price, provided that the Excluded Issuances (as defined in the Warrants) shall not be deemed a Dilutive Issuance. Such adjustment shall be made whenever such Common Stock or other securities are issued. By way of example, and for the avoidance of doubt, if the Company issues a convertible promissory note (including but not limited to a Variable Rate Transaction (as defined in the Purchase Agreement)Transaction), and the holder of such convertible promissory note has the right to convert it into Common Stock at an effective price per share that is lower than the then Conversion Price (including but not limited to a conversion price with a discount that varies with the trading prices of or quotations for the Common Stock), then the Holder has the right to reduce the Conversion Price to such Base Conversion Price (including but not limited to a conversion price with a discount that varies with the trading prices of or quotations for the Common Stock) in perpetuity regardless of whether the holder of such convertible promissory note ever effectuated a conversion at the Base Conversion Price. In the event of an issuance of securities involving multiple tranches or closings, any adjustment pursuant to this Section 1.6(e) shall be calculated as if all such securities were issued at the initial closing. Notwithstanding the foregoing, no adjustment will be made under this Section 1.6(e) in respect of an Exempt Issuance.

Dilutive Issuance. If the Borrower, at any time while this Note or any amounts due hereunder are outstandingwithin 60 days of the Issue Date, issues, sells or grants (or has issued, sold or granted as of the Issue Date, as the case may be) any option to purchase, or sells or grants any right to reprice, or otherwise disposes of, or issues (or has sold or issued, as the case may be, or announces any sale, grant or any option to purchase or other disposition), any Common Stock or other securities convertible into, exercisable for, or otherwise entitle any person or entity the right to acquire, shares of Common Stock (including, without limitation, upon conversion of this Note, and any convertible notes or warrants outstanding as of or following within 60 days of the Issue Date), in each or any case at an effective price per share that is lower than the then Conversion Price (such lower price, the “Base Conversion Price” and such issuances, collectively, a “Dilutive Issuance”) (it being agreed that if the holder of the Common Stock or other securities so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share that is lower than the Conversion Price, such issuance shall be deemed to have occurred for less than the Conversion Price on such date of the Dilutive Issuance), then the Conversion Price shall be reduced, at the option of the Holder, to a price equal to the Base Conversion Price. If the Company enters into a Variable Rate Transaction within 60 days of the Issue Date, provided that despite the Excluded Issuances (as defined prohibition set forth in the Warrants) Purchase Agreement, the Company shall not be deemed a Dilutive Issuanceto have issued Common Stock or Common Stock Equivalents at the lowest possible price per share at which such securities could be issued in connection with such Variable Rate Transaction. Such adjustment shall be made whenever such Common Stock or other securities are issued. By way of exampleNotwithstanding the foregoing, and for the avoidance of doubt, if the Company issues a convertible promissory note (including but not limited to a Variable Rate Transaction (as defined in the Purchase Agreement)), and the holder of such convertible promissory note has the right to convert it into Common Stock at an effective price per share that is lower than the then Conversion Price (including but not limited to a conversion price with a discount that varies with the trading prices of or quotations for the Common Stock), then the Holder has the right to reduce the Conversion Price to such Base Conversion Price (including but not limited to a conversion price with a discount that varies with the trading prices of or quotations for the Common Stockno adjustment will be made under this Section 1.6(e) in perpetuity regardless respect of whether an Exempt Issuance or issuance made more than 60 days from the holder of such convertible promissory note ever effectuated a conversion at the Base Conversion PriceIssue Date. In the event of an issuance of securities involving multiple tranches or closings, any adjustment pursuant to this Section 1.6(e) shall be calculated as if all such securities were issued at the initial closing.

Dilutive Issuance. If the BorrowerCompany, at any time while this Note or any amounts due hereunder are is outstanding, issues, sells or grants (or has issued, sold or granted as of the Issue Dateissue date, as the case may be) any option to purchase, or sells or grants any right to reprice, or otherwise disposes of, or issues (or has sold or issued, as the case may be, or announces any sale, grant or of any option to purchase or other disposition), any Common Stock or other securities convertible into, exercisable for, or that otherwise entitle any person or entity the right to acquire, shares of Common Stock (including, without limitation, upon conversion of this Note, and any convertible notes or warrants outstanding as of or following the Issue Date)Stock, in each or any case at an effective price per share that is lower than the then Conversion Price (such lower price, the “Base Conversion Price” and such issuances, collectively, a “Dilutive Issuance”) (it being agreed that if the holder of the Common Stock or other securities so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share that is lower than the Conversion Price, such issuance shall be deemed to have occurred for less than the Conversion Price on such date of the Dilutive Issuance), then the Conversion Price shall be reduced, at the option of the Holder, to a price equal to the Base Conversion Price, provided that . If the Excluded Issuances (as defined in Company enters into a variable rate transaction the Warrants) Company shall not be deemed a Dilutive Issuanceto have issued Common Stock pursuant to this provision at the lowest possible price per share at which such securities could be issued in connection with such variable rate transaction. Such adjustment shall be made whenever such Common Stock or other securities are issued. By way of exampleNotwithstanding the foregoing, and for the avoidance of doubt, if the Company issues a convertible promissory note (including but not limited to a Variable Rate Transaction (as defined in the Purchase Agreement)), and the holder of such convertible promissory note has the right to convert it into Common Stock at an effective price per share that is lower than the then Conversion Price (including but not limited to a conversion price with a discount that varies with the trading prices of or quotations for the Common Stock), then the Holder has the right to reduce the Conversion Price to such Base Conversion Price (including but not limited to a conversion price with a discount that varies with the trading prices of or quotations for the Common Stockno adjustment will be made under this Section 3(e) in perpetuity regardless respect of whether the holder of such convertible promissory note ever effectuated a conversion at the Base Conversion Pricean Exempt Issuance. In the event of an issuance of securities involving multiple tranches or closings, any adjustment pursuant to this Section 1.6(e3(e) shall be calculated as if all such securities were issued at the initial closing.

Dilutive Issuance. If the BorrowerCompany, at any time while this Note during the Pricing Period or any amounts due hereunder are outstandingfourteen (14) Business Days following the delivery of a Drawdown Notice, issues, sells or grants (or has issued, sold or granted as of the Issue Date, as the case may be) any option to purchase, or sells or grants any right to reprice, or otherwise disposes of, or issues (or has sold or issued, as the case may be, or announces any sale, grant or any option to purchase or other disposition), any Common Stock or other securities convertible into, exercisable for, or otherwise entitle any person or entity the right to acquire, shares of Common Stock (including, without limitation, upon conversion of this Note, and any convertible notes or warrants outstanding as of or following the Issue Date), in each or any case Equivalents at an effective price per share that is lower than the then Conversion Purchase Price (such lower price, the “Base Conversion Drawdown Price” and such issuances, collectively, a “Dilutive Issuance”) (it being agreed that if the holder of the Common Stock or other securities so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share that is lower than the Conversion Price, such issuance shall be deemed to have occurred for less than the Conversion Price on such date of the Dilutive Issuance), then the Conversion Purchase Price shall be reduced, at the option of the HolderInvestor, to a price equal to the Base Conversion Drawdown Price, provided that the Excluded Issuances (as defined in the Warrants) shall not be deemed a Dilutive Issuance. Such adjustment to the Purchase Price shall be made whenever such Common Stock or other securities are issued. By way effected through the issuance by the Company to the Investor of example, that number of additional shares (the “Drawdown Notice Dilution Shares”) equal to the difference between the number of Drawdown Notice Shares and for what the avoidance number of doubt, Drawdown Notice Shares would have been if the Company issues a convertible promissory note Drawdown Notice had been made at the adjusted Base Drawdown Price. Such Drawdown Notice Dilution Shares shall be issued at the Investor’s option either: (including but not limited i) at the next subsequent Drawdown Notice Date pursuant to a Variable Rate Transaction Drawdown Notice delivered by the Company, or (as defined ii) in the Purchase Agreement))event that more than ten (10) Business Days have passed since the last Drawdown Notice Date or the relevant Dilutive Issuance, and within three (3) Business Days following delivery to the holder Company by Investor of such convertible promissory note has Investor’s invoice requesting issuance of the right to convert it into Common Stock at an effective price per share that is lower than the then Conversion Price (including but not limited to a conversion price with a discount that varies with the trading prices of or quotations for the Common Stock), then the Holder has the right to reduce the Conversion Price to such Base Conversion Price (including but not limited to a conversion price with a discount that varies with the trading prices of or quotations for the Common Stock) in perpetuity regardless of whether the holder of such convertible promissory note ever effectuated a conversion at the Base Conversion Pricerelevant Drawdown Notice Dilution Shares. In the event of an issuance of securities involving multiple tranches or closings, any adjustment pursuant to this Section 1.6(e) 2.3 shall be calculated as if all such securities were issued at the initial closing. For the avoidance of doubt, each adjustment or readjustment of the Purchase Price as a result of the events described in this Section 2.3 of this Agreement shall occur without any action by the Investor. Notwithstanding the foregoing, no adjustment will be made under this Section 2.3 in respect of an Exempt Issuance. An “Exempt Issuance” shall mean the issuance of (a) shares of Common Stock or other securities to officers or directors of the Company pursuant to any stock or option or similar equity incentive plan duly adopted for such purpose and in effect as of the date of this Agreement; (b) securities issued pursuant to a merger, consolidation, acquisition or similar business combination, 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; or (c) securities issued with respect to which the Investor waives its rights in writing under this Section 2.3.

Dilutive Issuance. If the BorrowerCompany or any subsidiary thereof, as applicable, at any time while this Note is outstanding or the Holder holds any amounts due hereunder are outstandingConversion Shares, issues, sells shall sell or grants (or has issued, sold or granted as of the Issue Date, as the case may be) grant any option to purchase, or sells sell or grants grant any right to reprice, or otherwise disposes of, dispose of or issues issue (or has sold or issuedannounce any offer, as the case may be, or announces any sale, grant or any option to purchase or other disposition), ) any Common Stock or other securities convertible into, exercisable for, or otherwise entitle any person or entity the right to acquire, shares of Common Stock (includingEquivalents, without limitation, upon conversion of this Note, and any convertible notes or warrants outstanding as of or following the Issue Date), in each or any case at an effective price per share that is lower less than the then Fixed Conversion Price then in effect (such lower price, the “Base Conversion Share Price” and such issuances, issuances collectively, a “Dilutive Issuance”) (it being understood and agreed that if the holder of the Common Stock or other securities Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share that is lower less than the Fixed Conversion Price, such issuance shall be deemed to have occurred for less than the Fixed Conversion Price on such date of the Dilutive IssuanceIssuance at such effective price), then simultaneously with the consummation of each Dilutive Issuance the Fixed Conversion Price shall be reduced, at reduced and only reduced to equal the option lower of the Holder, to a price equal to (i) the Base Conversion Price, provided that Share Price and (ii) the Excluded Issuances (as defined lowest VWAP in the Warrantsfive (5) shall not be deemed a days immediately following such Dilutive Issuance. Such adjustment shall be made whenever such Common Stock or other securities Common Stock Equivalents are issued. By way Notwithstanding the foregoing, no adjustments shall be made, paid or issued under this Section 5(c) in respect of examplean Exempt Issuance. The Company shall notify the Holder, in writing, no later than the Trading Day following the issuance or deemed issuance of any Common Stock or Common Stock Equivalents subject to this Section 5(c), indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and for other pricing terms (such notice, the avoidance “Dilutive Issuance Notice”). For purposes of doubtclarification, if whether or not the Company issues provides a convertible promissory note (including but not limited Dilutive Issuance Notice pursuant to a Variable Rate Transaction (as defined in the Purchase Agreement)this Section 5(c), and upon the holder occurrence of such convertible promissory note has the right to convert it into Common Stock at an effective price per share that is lower than the then Conversion Price (including but not limited to a conversion price with a discount that varies with the trading prices of or quotations for the Common Stock)any Dilutive Issuance, then the Holder has is entitled to receive a number of Conversion Shares based upon the right to reduce the Conversion Base Share Price to such Base Conversion Price (including but not limited to a conversion price with a discount that varies with the trading prices of or quotations for the Common Stock) in perpetuity regardless of whether the holder Holder accurately refers to the Base Share Price in the Notice of such convertible promissory note ever effectuated Conversion. If the Company enters into a conversion Variable Rate Transaction, despite the prohibition thereon in the Securities Purchase Agreement, the Company shall be deemed to have issued Common Stock or Common Stock Equivalents at the Base Conversion Price. In the event of an issuance of securities involving multiple tranches lowest possible conversion or closings, any adjustment pursuant to this Section 1.6(e) shall be calculated as if all exercise price at which such securities were issued at the initial closingmay be converted or exercised.

Dilutive Issuance. If the BorrowerCompany or any subsidiary thereof, as applicable, at any time while this Note is outstanding or the Holder holds any amounts due hereunder are outstandingConversion Shares, issues, sells shall sell or grants (or has issued, sold or granted as of the Issue Date, as the case may be) grant any option to purchase, or sells sell or grants grant any right to reprice, or otherwise disposes of, dispose of or issues issue (or has sold or issuedannounce any offer, as the case may be, or announces any sale, grant or any option to purchase or other disposition), ) any Common Stock or other securities convertible into, exercisable for, or otherwise entitle any person or entity the right to acquire, shares of Common Stock (includingEquivalents, without limitation, upon conversion of this Note, and any convertible notes or warrants outstanding as of or following the Issue Date), in each or any case at an effective price per share that is lower less than the then Fixed Conversion Price then in effect (such lower price, the “Base Conversion Share Price” and such issuances, issuances collectively, a “Dilutive Issuance”) (it being understood and agreed that if the holder of the Common Stock or other securities Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share that is lower less than the Fixed Conversion Price, such issuance shall be deemed to have occurred for less than the Fixed Conversion Price on such date of the Dilutive IssuanceIssuance at such effective price), then simultaneously with the consummation of each Dilutive Issuance the Fixed Conversion Price shall be reduced, at reduced and only reduced to equal the option lower of the Holder, to a price equal to (i) the Base Conversion Price, provided that Share Price and (ii) the Excluded Issuances (as defined lowest VWAP in the Warrantsfive (5) shall not be deemed a days immediately following such Dilutive Issuance. Such adjustment shall be made whenever such Common Stock or other securities Common Stock Equivalents are issued. By way Notwithstanding the foregoing, no adjustments shall be made, paid or issued under this Section 5(c) in respect of examplean Exempt Issuance or any Excluded Securities. The Company shall notify the Holder, in writing, no later than the Trading Day following the issuance or deemed issuance of any Common Stock or Common Stock Equivalents subject to this Section 5(c), indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and for other pricing terms (such notice, the avoidance “Dilutive Issuance Notice”). For purposes of doubtclarification, if whether or not the Company issues provides a convertible promissory note (including but not limited Dilutive Issuance Notice pursuant to a Variable Rate Transaction (as defined in the Purchase Agreement)this Section 5(c), and upon the holder occurrence of such convertible promissory note has the right to convert it into Common Stock at an effective price per share that is lower than the then Conversion Price (including but not limited to a conversion price with a discount that varies with the trading prices of or quotations for the Common Stock)any Dilutive Issuance, then the Holder has is entitled to receive a number of Conversion Shares based upon the right to reduce the Conversion Base Share Price to such Base Conversion Price (including but not limited to a conversion price with a discount that varies with the trading prices of or quotations for the Common Stock) in perpetuity regardless of whether the holder Holder accurately refers to the Base Share Price in the Notice of such convertible promissory note ever effectuated Conversion. If the Company enters into a conversion Variable Rate Transaction, despite the prohibition thereon in the Securities Purchase Agreement, the Company shall be deemed to have issued Common Stock or Common Stock Equivalents at the Base Conversion Price. In the event of an issuance of securities involving multiple tranches lowest possible conversion or closings, any adjustment pursuant to this Section 1.6(e) shall be calculated as if all exercise price at which such securities were issued at the initial closingmay be converted or exercised.

Dilutive Issuance. If From the Borrowerdate the Stockholder Approval is obtained and deemed effective until the date of the one-year anniversary of the Effective Date, at any time while this Note if the Company or any amounts due hereunder are outstandingSubsidiary, issuesas applicable, sells or grants (or has issued, sold or granted as of the Issue Date, as the case may be) any option to purchase, purchase or sells or grants any right to reprice, or otherwise disposes of, of or issues (or has sold or issued, as the case may be, or announces any sale, grant or any option to purchase or other disposition), any Common Stock or other securities convertible into, exercisable for, or otherwise entitle Common Stock Equivalents entitling any person or entity the right Person to acquire, acquire shares of Common Stock (including, without limitation, upon conversion of this Note, and any convertible notes or warrants outstanding as of or following the Issue Date), in each or any case at an effective price per share that is lower than the then Conversion Price on the date the Stockholder Approval is obtained and deemed effective (the “Effective Conversion Price” and such lower price, the “Base Conversion Price” and such issuances, collectively, a “Dilutive Issuance”) (it being agreed provided, that if the holder of the Common Stock or other securities Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share that is lower than the Effective Conversion Price, such issuance shall be deemed to have occurred for less than the Effective Conversion Price on such date of the Dilutive Issuance), then the Company shall promptly (but in any event within three (3) Trading Days following the closing of a Dilutive Issuance) issue an additional number of shares of Common Stock (“Additional Shares”) to each Purchaser (including the Lead Investor or any member of the LI Group designated in writing by the Lead Investor) equal to the difference of: (i) the number of Conversion Shares that would have been issued if the Conversion Price shall be reduced, at the option of the Holder, to a price was equal to the Base Conversion Price, provided that Price on the Excluded Issuances date the Stockholder Approval was obtained and deemed effective minus (as defined ii) the sum of (a) the number of Conversion Shares actually issued in respect of the Warrantsshares of Preferred Stock purchased by such Purchaser pursuant to this Agreement plus (b) shall not be deemed the number of Additional Shares issued to such Purchaser (including the Lead Investor or Lead Investor’s designee) in connection with a prior Dilutive Issuance, if any. Such adjustment shall be made whenever such Common Stock or other securities Common Stock Equivalents are issued. By way of exampleNotwithstanding the foregoing, no Exempt Issuance shall be deemed to be a Dilutive Issuance and for the avoidance of doubt, if the Company issues a convertible promissory note (including but not limited to a Variable Rate Transaction (as defined in the Purchase Agreement)), and the holder of such convertible promissory note has the right to convert it into Common Stock at an effective price per share that is lower than the then Conversion Price (including but not limited to a conversion price with a discount that varies with the trading prices of or quotations for the Common Stock), then the Holder has the right to reduce the Conversion Price to such Base Conversion Price (including but not limited to a conversion price with a discount that varies with the trading prices of or quotations for the Common Stock) in perpetuity regardless of whether the holder of such convertible promissory note ever effectuated a conversion at the Base Conversion Priceshall not be less than $0.40. In The Company shall notify each Purchaser in writing, no later than the event of an Trading Day following the issuance of securities involving multiple tranches any Common Stock or closingsCommon Stock Equivalents subject to this Section 4.19, any adjustment indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice, the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 1.6(e) shall be calculated as if all such securities were issued at 4.19, upon the initial closingoccurrence of any Dilutive Issuance, each Purchaser is entitled to receive Additional Shares pursuant to this Section 4.19.

Dilutive Issuance. If the Borrower, at any time while this Note or any amounts due hereunder are outstanding, issues, sells or grants (or has issued, sold or granted as of the Issue Date, as the case may be) any option to purchase, or sells or grants any right to reprice, or otherwise disposes of, or issues (or has sold or issued, as the case may be, or announces any sale, grant or any option to purchase or other disposition), any Common Stock or other securities convertible into, exercisable for, or otherwise entitle any person or entity the right to acquire, shares of Common Stock (including, without limitation, upon conversion of this Note, and any convertible notes or warrants outstanding as of or following the Issue Date), in each or any case at an effective price per share that is lower than the then Conversion Price (such lower price, the “Base Conversion Price” and such issuances, collectively, a “Dilutive Issuance”) (it being agreed that if the holder of the Common Stock or other securities so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share that is lower than the Conversion Price, such issuance shall be deemed to have occurred for less than the Conversion Price on such date of the Dilutive Issuance), then the Conversion Price shall be reduced, at the option of the Holder, to a price equal to the Base Conversion Price, provided that the Excluded Issuances (as defined in the Warrants) shall not be deemed a Dilutive Issuance. Such adjustment shall be made whenever such Common Stock or other securities are issued. By way of example, and for the avoidance of doubt, if the Company issues a convertible promissory note (including but not limited to a Variable Rate Transaction (as defined in the Purchase Agreement)Transaction), and the holder of such convertible promissory note has the right to convert it into Common Stock at an effective price per share that is lower than the then Conversion Price (including but not limited to a conversion price with a discount that varies with the trading prices of or quotations for the Common Stock), then the Holder has the right to reduce the Conversion Price to such Base Conversion Price (including but not limited to a conversion price with a discount that varies with the trading prices of or quotations for the Common Stock) in perpetuity regardless of whether the holder of such convertible promissory note ever effectuated a conversion at the Base Conversion Price. Notwithstanding the foregoing, no adjustment will be made under this Section 1.6(e) in respect of an Exempt Issuance. In the event of an issuance of securities involving multiple tranches or closings, any adjustment pursuant to this Section 1.6(e) shall be calculated as if all such securities were issued at the initial closing.

Dilutive Issuance. If the BorrowerIf, at any time while when this Note is issued and outstanding, excluding the Merger, the Borrower issues or sells, or in accordance with this section hereof is deemed to have issued or sold, any shares of Common Stock for no consideration or for a consideration per share (before deduction of reasonable expenses or commissions underwriting discounts or allowances in connection therewith) less than the Conversion Price in effect on the date of such issuance (or deemed issuance) of such shares of Common Stock (a “Dilutive Issuance”), then immediately upon the Dilutive Issuance, the Conversion Price will be reduced to the amount of the consideration per share received by the Borrower in such Dilutive Issuance. Such adjustments described above to the Conversion Price shall be permanent (subject to additional adjustments under this section). In the event that Borrower (or any amounts due hereunder subsidiary) shall take any action to which the provisions hereof are outstandingnot strictly applicable, issuesor, sells if applicable, would not operate to protect Holder from dilution or grants (or has issued, sold or granted as if any event occurs of the Issue Datetype contemplated by the provisions of this Section but not expressly provided for by such provisions (including, without limitation, the granting of stock appreciation rights, phantom stock rights or other rights with equity features), then Borrower’s board of directors shall in good faith determine and implement an appropriate adjustment in the Conversion Price so as to protect the case may be) rights of Lender, provided that no such adjustment pursuant to this Section will increase the Conversion Price. The Borrower shall be deemed to have issued or sold shares of Common Stock if the Borrower in any option to purchase, or sells manner issues or grants any right warrants, rights or options (not including employee stock option plans), whether or not immediately exercisable, to reprice, subscribe for or otherwise disposes of, or issues (or has sold or issued, as the case may be, or announces any sale, grant or any option to purchase or other disposition), any Common Stock or other securities convertible into, exercisable for, into or otherwise entitle any person or entity the right to acquire, shares of exchangeable for Common Stock (including“Convertible Securities”) (such warrants, without limitation, upon conversion of this Note, rights and any convertible notes options to purchase Common Stock or warrants outstanding Convertible Securities are hereinafter referred to as of or following “Options”) and the Issue Date), in each or any case at an effective price per share that is lower than the then Conversion Price (such lower price, the “Base Conversion Price” and such issuances, collectively, a “Dilutive Issuance”) (it being agreed that if the holder of the for which Common Stock or other securities so issued shall at any time, whether by operation is issuable upon the exercise of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share that Options is lower than the Conversion Price, such issuance shall be deemed to have occurred for less than the Conversion Price on such date of the Dilutive Issuance)then in effect, then the Conversion Price shall be reducedequal to such price per share. For purposes of the preceding sentence, the “price per share for which Common Stock is issuable upon the exercise of such Options” is determined by dividing (i) the total amount, if any, received or receivable by the Borrower as consideration for the issuance or granting of all such Options, plus the minimum aggregate amount of additional consideration, if any, payable to the Borrower upon the exercise of all such Options, plus, in the case of Convertible Securities issuable upon the exercise of such Options, the minimum aggregate amount of additional consideration payable upon the conversion or exchange thereof at the option time such Convertible Securities first become convertible or exchangeable, by (ii) the maximum total number of shares of Common Stock issuable upon the Holderexercise of all such Options (assuming full conversion of Convertible Securities, to a price equal if applicable). No further adjustment to the Base Conversion Price, provided that the Excluded Issuances (as defined in the Warrants) shall not be deemed a Dilutive Issuance. Such adjustment shall Price will be made whenever upon the actual issuance of such Common Stock upon the exercise of such Options or other securities are issuedupon the conversion or exchange of Convertible Securities issuable upon exercise of such Options. By way Additionally, the Borrower shall be deemed to have issued or sold shares of example, and for the avoidance of doubt, Common Stock if the Company Borrower in any manner issues a convertible promissory note (including but or sells any Convertible Securities, whether or not limited to a Variable Rate Transaction (as defined in the Purchase Agreement))immediately convertible, and the holder of such convertible promissory note has the right to convert it into Common Stock at an effective price per share that for which Common Stock is lower issuable upon such conversion or exchange is less than the then Conversion Price (including but not limited to a conversion price with a discount that varies with the trading prices of or quotations for the Common Stock)then in effect, then the Holder has Conversion Price shall be equal to such price per share. For the right purposes of the preceding sentence, the “price per share for which Common Stock is issuable upon such conversion or exchange” is determined by dividing (1) the total amount, if any, received or receivable by the Borrower as consideration for the issuance or sale of all such Convertible Securities, plus the minimum aggregate amount of additional consideration, if any, payable to reduce the Borrower upon the conversion or exchange thereof at the time such Convertible Securities first become convertible or exchangeable, by (2) the maximum total number of shares of Common Stock issuable upon the conversion or exchange of all such Convertible Securities. No further adjustment to the Conversion Price to such Base Conversion Price (including but not limited to a conversion price with a discount that varies with will be made upon the trading prices of or quotations for the Common Stock) in perpetuity regardless of whether the holder actual issuance of such convertible promissory note ever effectuated a Common Stock upon conversion at the Base Conversion Price. In the event or exchange of an issuance of securities involving multiple tranches or closings, any adjustment pursuant to this Section 1.6(e) shall be calculated as if all such securities were issued at the initial closingConvertible Securities.