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, Common Stock Equivalents, 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. 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), 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. For the avoidance of doubt, the Holder shall be entitled to utilize the Base Conversion Price with respect to a Dilutive Issuance, even if the Dilutive Issuance occurs prior to the date that the Holder is entitled to convert this Note. Notwithstanding the foregoing, no adjustment will be made under this Section 1.6(e) with respect to an Exempt Issuance (as defined below). An “Exempt Issuance” shall mean (i) the issuance of shares of Common Stock pursuant to the conversion or exercise of Common Stock Equivalents issued prior to the Issue Date, so long as the respective Common Stock Equivalents are not amended on or after Issue Date of this Note, and (ii) grants or issuances to officers, directors or employees or other service providers of Common Stock or Common Stock Equivalents (and the conversion or exercise thereof) in connection with stockholder approved stock option, stock, incentive or similar plans.

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, Common Stock Equivalents, 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 Fixed 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 Fixed 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 Fixed Conversion Price shall be reduced, at the option of the Holder, reduced to a price equal to the Base Conversion Price. If the Company enters into a Variable Rate Transaction, despite the prohibition set forth in the Purchase Agreement, the Company shall be deemed to 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), 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 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(e) shall be calculated as if all such securities were issued at the initial closing. For the avoidance of doubt, the Holder shall be entitled to utilize the Base Conversion Price with respect to a Dilutive Issuance, even if the Dilutive Issuance occurs prior to the date that the Holder is entitled to convert this Note. Notwithstanding the foregoing, no adjustment will be made under this Section 1.6(e) with respect to an Exempt Issuance (as defined below). An “Exempt Issuance” shall mean (i) the issuance of shares of Common Stock pursuant to the conversion or exercise of Common Stock Equivalents issued prior to the Issue Date, so long as the respective Common Stock Equivalents are not amended on or after Issue Date of this Note, and (ii) grants or issuances to officers, directors or employees or other service providers of Common Stock or Common Stock Equivalents (and the conversion or exercise thereof) in connection with stockholder approved stock option, stock, incentive or similar plans.

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, Common Stock Equivalents, 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. 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 TransactionTransaction (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. For the avoidance of doubt, the Holder shall be entitled to utilize the Base Conversion Price with respect to a Dilutive Issuance, even if the Dilutive Issuance occurs prior to the date that the Holder is entitled to convert this Note. Notwithstanding the foregoing, no adjustment will be made under this Section 1.6(e) with respect to an Exempt Issuance (as defined below). An “Exempt Issuance” shall mean (i) the issuance of shares of Common Stock pursuant to the conversion or exercise of Common Stock Equivalents issued prior to the Issue Date, so long as the respective Common Stock Equivalents are not amended on or after Issue Date of this Note, and (ii) grants or issuances to officers, directors or employees or other service providers of Common Stock or Common Stock Equivalents (and the conversion or exercise thereof) in connection with stockholder approved stock option, stock, incentive or similar plans.

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, Common Stock Equivalents, 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. 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 Transactionvariable rate 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. For the avoidance of doubt, the Holder shall be entitled to utilize the Base Conversion Price with respect to a Dilutive Issuance, even if the Dilutive Issuance occurs prior to the date that the Holder is entitled to convert this Note. Notwithstanding the foregoing, no adjustment will be made under this Section 1.6(e) with respect to an Exempt Issuance (as defined below). An “Exempt Issuance” shall mean (i) the issuance of shares of Common Stock pursuant to the conversion or exercise of Common Stock Equivalents issued prior to the Issue Date, so long as the respective Common Stock Equivalents are not amended on or after Issue Date of this Note, and (ii) grants or issuances to officers, directors or employees or other service providers of Common Stock or Common Stock Equivalents (and the conversion or exercise thereof) in connection with stockholder approved stock option, stock, incentive or similar plans.

Dilutive Issuance. If the BorrowerIf, at any time while this Note or any amounts due hereunder are is outstanding, issues, the Borrower sells or grants (or has issued, sold or granted as of the Issue Dategranted, 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, for or otherwise entitle entitled the any person or entity the right to acquire, acquire shares of Common Stock (including, without limitation, upon conversion of this Note, Common Stock Equivalents, 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 reducedreduced to a price equal the Base Conversion Price; provided, at however, that in the option of event that the HolderDilutive Issuance occurs prior to the Maturity Date, then the Fixed Conversion Price shall be reduced to a price equal to 75% multiplied by the Base Conversion Price. 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), 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 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(e) shall be calculated as if all such securities were issued at the initial closing. For the avoidance of doubt, the Holder shall be entitled to utilize the Base Conversion Price with respect to a Dilutive Issuance, even if the Dilutive Issuance occurs prior to the date that the Holder is entitled to convert this Note. Notwithstanding the foregoing, no adjustment will be made under this Section 1.6(e) with respect to an Exempt Issuance (as defined below). An “Exempt Issuance” shall mean (i) the issuance of (a) shares of Common Stock or other securities to employees, officers or directors of the Company pursuant to any stock or option or similar equity incentive plan duly adopted for such purpose, by a majority of the conversion non-employee members of the Company’s Board of Directors or exercise a majority of Common Stock Equivalents the members of a committee of non-employee directors established for such purpose in a manner which is consistent with the Company’s prior business practices; (b) securities issued prior pursuant to a merger, consolidation, acquisition or similar business combination approved by a majority of the disinterested directors of the Company, provided that any such issuance shall only be to a Person (or to the Issue Dateequityholders of a Person) which is, so long as itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the respective Common Stock Equivalents are business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not amended on include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or after Issue Date of to an entity whose primary business is investing in securities; or (c) securities issued with respect to which the Holder waives its rights in writing under this Note, and (ii) grants or issuances to officers, directors or employees or other service providers of Common Stock or Common Stock Equivalents (and the conversion or exercise thereof) in connection with stockholder approved stock option, stock, incentive or similar plansSection 1.6(e).

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 (including, without limitation, upon conversion of this Note, Common Stock Equivalents, 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 the option of the Holder, reduced and only reduced to a price equal to the Base Conversion Share Price. Such adjustment shall be made whenever such Common Stock or other securities Common Stock Equivalents 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), 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. For the avoidance of doubt, the Holder shall be entitled to utilize the Base Conversion Price with respect to a Dilutive Issuance, even if the Dilutive Issuance occurs prior to the date that the Holder is entitled to convert this Note. Notwithstanding the foregoing, no adjustment will adjustments shall be made made, paid or issued under this Section 1.6(e5(c) with in respect to of an Exempt Issuance (as defined below)Issuance. An “Exempt Issuance” The Company shall mean (i) notify the Holder, in writing, no later than the Trading Day following the issuance or deemed issuance of shares of Common Stock pursuant to the conversion or exercise of Common Stock Equivalents issued prior to the Issue Date, so long as the respective Common Stock Equivalents are not amended on or after Issue Date of this Note, and (ii) grants or issuances to officers, directors or employees or other service providers 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 other pricing terms (and such notice, the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5(c), upon the occurrence of any Dilutive Issuance, the Holder is entitled to receive a number of Conversion Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Conversion. If the Company enters into a Variable Rate Transaction, despite the prohibition in Section 5(i) hereof, the Company shall be deemed to have issued Common Stock or Common Stock Equivalents at the lowest possible conversion or exercise thereof) in connection with stockholder approved stock option, stock, incentive price at which such securities may be converted or similar plansexercised.

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, Common Stock Equivalents, 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. If the Company enters into a Variable Rate Transaction, despite the prohibition set forth in the Purchase Agreement, the Company shall be deemed to 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), 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 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(e) shall be calculated as if all such securities were issued at the initial closing. For the avoidance of doubt, the Holder shall be entitled to utilize the Base Conversion Price with respect to a Dilutive Issuance, even if the Dilutive Issuance occurs prior to the date that the Holder is entitled to convert this Note. Notwithstanding the foregoing, no adjustment will be made under this Section 1.6(e) with respect to an Exempt Issuance (as defined below). An “Exempt Issuance” shall mean (i) the issuance of shares of Common Stock pursuant to the conversion or exercise of Common Stock Equivalents issued prior to the Issue Date, so long as the respective Common Stock Equivalents are not amended on or after Issue Date of this Note, and (ii) grants or issuances to officers, directors or employees or other service providers of Common Stock or Common Stock Equivalents (and the conversion or exercise thereof) in connection with stockholder approved stock option, stock, incentive or similar plans.