Issuance and Sale of Series a Preferred Stock and Warrants Sample Clauses

Open Split View

Download

Share

Cite

Issuance and Sale of Series a Preferred Stock and Warrants 

Sample 1

Save

Copy

Related to Issuance and Sale of Series a Preferred Stock and Warrants

• Purchase and Sale of Preferred Stock 1.1 Sale and Issuance of Series A Preferred Stock. --------------------------------------------- (a) The Company shall adopt and file with the Secretary of State of the State of Delaware on or before the Closing (as defined below) the Amended and Restated Certificate of Incorporation in the form attached hereto as Exhibit ------- B (the "Restated Certificate"). - -------------------- (b) Subject to the terms and conditions of this Agreement, each Purchaser agrees to purchase at the Closing and the Company agrees to sell and issue to each Purchaser at the Closing that number of shares of Series A Preferred Stock set forth opposite each such Purchaser's name on Exhibit A --------- attached hereto at a purchase price of $0.609 per share. The shares of Series A Preferred Stock issued to the Purchaser pursuant to this Agreement shall be hereinafter referred to as the "Stock." -----

• Purchase and Sale of Preferred Shares (a) Subject to the terms and the conditions set forth herein, and in reliance upon the representations and warranties of the Company and the First Closing Investors set forth herein or in any certificate or other document delivered pursuant hereto, the Company issued, sold and delivered to each First Closing Investor, free and clear of all Liens (except as set forth in the Registration Rights Agreement and the Shareholders Agreement), and each First Closing Investor purchased at the First Closing, the number of Series A Preferred Shares set opposite such First Closing Investor’s name in the column labeled “Series A Preferred Shares purchased at the First Closing” on Appendix I-A from the Company at a purchase price of $3.7999696 per share. (b) Subject to the terms and the conditions set forth herein, and in reliance upon the representations and warranties of the Company and the Second Closing Investors set forth herein or in any certificate or other document delivered pursuant hereto, the Company shall issue, sell and deliver to each Second Closing Investor, free and clear of all Liens (except as set forth in the Registration Rights Agreement and the Shareholders Agreement), and each Second Closing Investor shall purchase at the Second Closing, the number of Series B Units set opposite such Second Closing Investor’s name in the column labeled “Series B Units to be purchased at the Second Closing” on Appendix I-B from the Company at a purchase price of $3.00 per Series B Unit, subject to the limitation set forth in Section 2.5 with respect to the Debenture Holder Investors. The Series B Preferred Shares shall accrue dividends from the date of issuance.

• Series B Preferred Stock Section 1.2(d)......................... 5 Shares............................ Section 3.2(a).........................

• Series A Preferred Stock On the terms and subject to the conditions set forth herein, as soon as practicable after the receipt of the approvals of the Board of Directors of the Company and the stockholders of the Company, including the holders of the Series A Preferred Stock, referred to in Paragraph 5, the Company will amend the terms of the Series A Preferred Stock so that, as amended, the Series A Preferred Stock will have only such rights, preferences and privileges set forth on Exhibit A hereto (as so amended, the "New Preferred Stock"). As set forth in Exhibit A hereto, the New Preferred Stock will offer the holders thereof the options set forth in subparagraphs (a)-(c) below, as such holder may elect. All references herein to the Series A Preferred Stock or the New Preferred Stock shall be deemed to include all rights to dividends or other distributions in respect of such Series A Preferred Stock or the New Preferred Stock. (a) OPTION 1 - CASH. The New Preferred Stock shall be exchangeable at the option of the holder thereof at any time prior to the date which is ten days after the Closing Date (as defined in Paragraph 5 below) for cash in amount equal to 50% of the face value of the New Preferred Stock plus all accrued but unpaid dividends on the Series A Preferred Stock, up to an aggregate amount of $6.4 million face value and accrued and unpaid dividends. If, in the judgment of the Board of Directors of the Company, the Company's financial condition and results of operations permit the Company to permit the exchange for cash of more than $6.4 million face value (plus accrued dividends) of the New Preferred Stock, the terms of the New Preferred Stock will permit the exchange for cash of up to $8.0 million face value (plus accrued and unpaid dividends) of the New Preferred Stock. To the extent that holders of Series A Preferred Stock desire to exchange in the aggregate a greater face value (plus accrued and unpaid dividends) of the New Preferred Stock than is permitted under the terms of the New Preferred Stock, New Preferred Stock will be accepted for exchange by the Company for cash on a pro rata basis based upon the aggregate face value (plus accrued and unpaid dividends) of the New Preferred Stock tendered for exchange.

• Purchase and Sale of Shares and Warrants Subject to the satisfaction (or waiver) of the conditions to Closing set forth in this Agreement and the Escrow Agreement, each Subscriber shall purchase the Shares and Warrants for the portion of the Purchase Price indicated on the signature page hereto, and the Company shall sell such Shares and Warrants to the Subscriber. The Purchase Price for the Shares and Warrants shall be paid in cash. The entire Purchase Price shall be allocated to the Shares.

• Issuance and Sale of Common Shares Section 2.01 (a)

• Issuance and Sale of Shares The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agent, shares of common stock (the “Placement Shares”) of the Company, par value $0.0001 per share (the “Common Stock”); provided, however, that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would (a) exceed the number or dollar amount of shares of Common Stock registered on the effective Registration Statement (defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued shares of Common Stock (less shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized capital stock), (c) exceed the number or dollar amount of shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount of shares of Common Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and which has been or will be declared effective by the Securities and Exchange Commission (the “Commission”), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Common Stock. The Company has filed or will file, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3, including a base prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations thereunder. The Company has prepared a prospectus or a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus or prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement, as supplemented, by the Prospectus Supplement, relating to the Placement Shares to be issued from time to time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued Issuer Free Writing Prospectus(es), is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus (defined below) shall be deemed to refer to and include the documents, if any, incorporated by reference therein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data Electronic Application system when used by the Commission (collectively, “XXXXX”).

• Purchase and Sale of Debentures and Warrants Upon the ----------------------------------------------- following terms and conditions, the Company shall issue and sell to the Purchasers, and the Purchasers shall purchase from the Company, secured convertible debentures in the aggregate principal amount of up to Four Million Dollars ($4,000,000.00) bearing interest at the rate of eight percent (8%) per annum, convertible into shares of the Company's common stock, par value $0.01 per share (the "Common Stock"), in substantially the form attached hereto as ------------- Exhibit B (the "Debentures"), and warrants to purchase shares of Common Stock, ---------- ---------- in substantially the form attached hereto as Exhibit C (the "Warrants"), set --------- -------- forth with respect to such Purchaser on Exhibit A hereto. The aggregate ---------- purchase price may be funded in one or more tranches as agreed upon by the Company and the Purchasers. The Company and the Purchasers are executing and delivering this Agreement in accordance with and in reliance upon the exemption from securities registration afforded by Section 4(2) of the U.S. Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the "Securities Act"), including Regulation D ("Regulation D"), and/or upon such --------------- ------------ other exemption from the registration requirements of the Securities Act as may be available with respect to any or all of the investments to be made hereunder.

• Purchase and Sale of Convertible Debentures 6 2.2 Purchase and Sale; Purchase Price....................................6 2.2 Execution and Delivery of Documents; the Closing.....................6 2.3 The Post-Closing.....................................................7

• Preferred Shares The Preferred Shares have been duly and validly authorized, and, when issued and delivered pursuant to this Agreement, such Preferred Shares will be duly and validly issued and fully paid and non-assessable, will not be issued in violation of any preemptive rights, and will rank pari passu with or senior to all other series or classes of Preferred Stock, whether or not issued or outstanding, with respect to the payment of dividends and the distribution of assets in the event of any dissolution, liquidation or winding up of the Company.