Common use of Sale of New Securities Clause in Contracts

Sale of New Securities. If, at any time following the Closing and ending on the fifth (5th) anniversary of the Closing, and for so long as the Lead Investor (1) holds at least [**]% of the Securities purchased by the Lead Investor as of the Closing Date and (2) purchases at least [**]% of the maximum amount of New Securities it is permitted to purchase pursuant to this Section 4.12, the Company or any of its Subsidiaries makes any nonpublic offering (for clarity, meaning any offering that is not registered under the Securities Act or in a marketed “Rule 144A” offering of debt securities to accredited investors) of any Common Stock, other capital stock of the Company or other type of equity interest, warrants, options or other securities of the Company, including any securities that are convertible into or exchangeable into the foregoing (other than (i) Common Stock issuable to officers, employees, directors, managers or independent contractors of the Company or any of its Subsidiaries in connection with warrants, options, notes or other rights to acquire securities of the Company including any such shares issued pursuant to a Stock Plan, (ii) Common Stock, other capital stock of the Company or any other type of equity interest, warrants, options, convertible securities or other securities offered, sold or issued by the Company upon conversion, exercise or exchange of any securities of the Company outstanding immediately prior to the Closing, (iii) Common Stock, other capital stock of the Company or any other type of equity interest, warrants, options, convertible securities or other securities offered, sold or issued by the Company to equipment lessors, pursuant to an equipment leasing transaction, (iv) Common Stock, other capital stock of the Company or any other type of equity interest, warrants, options, convertible securities or other securities offered, sold or issued by the Company to a third-party financial institution in connection with a bona fide borrowing by the Company or its Subsidiaries, (v) Common Stock, other capital stock of the Company or any other type of equity interest, warrants, options, convertible securities or other securities offered or issued in connection with any stock split, stock combination, stock dividend, distribution or recapitalization, (vi) Common Stock, other capital stock of the Company or any other type of equity interest, warrants, options, convertible securities or other securities offered, sold or issued by the Company in connection with a strategic partnership or commercial arrangement, (vii) Common Stock, other capital stock of the Company or any other type of equity interest, warrants, options, convertible securities or other securities offered, sold or issued by the Company as acquisition consideration pursuant to the acquisition of another corporation, entity or business by the Company by merger, purchase of substantially all of the assets or other reorganization or to a joint venture agreement, and (viii) Underlying Shares offered sold or issued by the Company upon conversion, exercise or exchange of any of the Securities) (any such security, a “New Security”), then the Lead Investor shall have the right (but not the obligation) to acquire from the Company for the same price and on the same terms as such New Securities are proposed to be offered to others, up to the amount of New Securities in the aggregate required to enable it to maintain its proportionate Common Stock interest in the Company (calculated on a fully diluted basis, assuming the exercise in full, for cash, of any convertible or exchangeable securities, including the Securities, and for clarity, without regard to any limitation on exercise contained in the Pre-Funded Warrants) immediately prior to any such issuance of New Securities; provided, however, that notwithstanding anything in this Section 4.12 to the contrary, if such New Security is Common Stock or securities that are convertible into or exchangeable into Common Stock, then if the Lead Investor then holds any Pre-Funded Warrants, such New Securities purchased by the Lead Investor pursuant to this Section 4.12 shall instead be issued to the Lead Investor as additional Pre-Funded Warrants. The amount of New Securities that the Lead Investor shall be entitled to purchase in the aggregate shall be determined by multiplying (x) the total number or principal amount of such offered New Securities by (y) a fraction, the numerator of which is the sum of (i) the number of shares of Common Stock held by the Lead Investor, if any, and (ii) without duplication, the number of shares of Common Stock represented by the Pre-Funded Warrants held by the Lead Investor (for clarity, without regard to any limitation on exercise contained in the Pre-Funded Warrants), and the denominator of which is the total number of shares of Common Stock then outstanding (calculated on a fully diluted basis as of such date, assuming the exercise in full, for cash, of any convertible or exchangeable securities, including the Securities, and for clarity, without regard to any limitation on exercise contained in the Pre-Funded Warrants) (the Lead Investor’s “Pro Rata Allocation”); provided that to the extent the issuance of New Securities to the Lead Investor would result in a Stockholder Approval Requirement, the Lead Investor may elect to purchase up to an amount of New Securities that would not cause the Stockholder Approval Requirement.

Sale of New Securities. If, at any time following the Closing and ending on the fifth (5th) anniversary of the Closing, and for so long as the Lead Investor (1) holds at least [**]% of the Securities purchased by the Lead Investor as of the Closing Date and (2) purchases at least [**]% of the maximum amount of New Securities it is permitted to purchase pursuant to this Section 4.12, the Company or any of its Subsidiaries makes any public or nonpublic offering (for clarity, meaning any offering that is not registered under the Securities Act or in a marketed “Rule 144A” offering of debt securities to accredited investors) sale of any Common Stock, other capital stock of the Company or other type of equity interest, warrants, options or other securities of the Company, including any securities that are convertible into or exchangeable into the foregoing (other than (i) Common Stock issuable to officers, employees, directors, managers or independent contractors of the Company or any of its Subsidiaries in connection with warrants, options, notes or other rights to acquire securities of the Company including any such shares issued pursuant to a Stock Plan, (ii) Common Stock, other capital stock of the Company or any other type of equity interest, warrants, options, convertible securities or other securities offered, sold or issued by the Company upon conversion, exercise or exchange of any securities of the Company outstanding immediately prior to the ClosingClosing and disclosed on the Capitalization Table, (iii) Common Stock, other capital stock of the Company or any other type of equity interest, warrants, options, convertible securities or other securities offered, sold or issued by the Company to equipment lessors, pursuant to an equipment leasing transaction, (iv) Common Stock, other capital stock of the Company or any other type of equity interest, warrants, options, convertible securities or other securities offered, sold or issued by the Company to a third-party financial institution in connection with a bona fide borrowing by the Company or its Subsidiaries, (v) Common Stock, other capital stock of the Company or any other type of equity interest, warrants, options, convertible securities or other securities offered or issued in connection with any stock split, stock combination, stock dividend, distribution or recapitalization, (vi) Common Stock, other capital stock of the Company or any other type of equity interest, warrants, options, convertible securities or other securities offered, sold or issued by the Company in connection with a strategic partnership or commercial arrangement, (vii) Common Stock, other capital stock of the Company or any other type of equity interest, warrants, options, convertible securities or other securities offered, sold or issued by the Company as acquisition consideration pursuant to the acquisition of another corporation, entity or business by the Company by merger, purchase of substantially all of the assets or other reorganization or to a joint venture agreement, and (viiiv) Underlying Shares offered sold or issued by the Company upon conversion, exercise or exchange of any of the Securities) (any such security, a “New Security”), then the Lead Investor shall have the right (but not the obligation) to acquire from the Company for the same price and on the same terms as such New Securities are proposed to be offered to others, up to the amount of New Securities in the aggregate required to enable it to maintain its proportionate Common Stock interest in the Company (calculated on a fully diluted basis, assuming the exercise in full, for cash, of any convertible or exchangeable securities, including the Securities, and for clarity, without regard to any limitation on exercise contained in the Pre-Funded Warrants) immediately prior to any such issuance of New Securities; provided, however, that notwithstanding anything in this Section 4.12 4.13 to the contrary, if such New Security is Common Stock or securities that are convertible into or exchangeable into Common Stock, then if the Lead Investor then holds any Pre-Funded Warrants, such New Securities purchased by the Lead Investor pursuant to this Section 4.12 4.13 shall instead be issued to the Lead Investor as additional Pre-Funded Warrants. The amount of New Securities that the Lead Investor shall be entitled to purchase in the aggregate shall be determined by multiplying (x) the total number or principal amount of such offered New Securities by (y) a fraction, the numerator of which is the sum of (i) the number of shares of Common Stock held by the Lead Investor, if any, and (ii) without duplication, the number of shares of Common Stock represented by the Pre-Funded Warrants Securities held by the Lead Investor (for claritycalculated on a fully diluted basis as of such date, without regard to any limitation on exercise contained in the Pre-Funded Warrants)if any, and the denominator of which is the total number of shares of Common Stock then outstanding (calculated on a fully diluted basis as of such date, assuming the exercise in full, for cash, of any convertible or exchangeable securities, including the Securities, and for clarity, without regard to any limitation on exercise contained in the Pre-Funded Warrants) (the Lead Investor’s “Pro Rata Allocation”); provided that to the extent the issuance of New Securities to the Lead Investor would result in a Stockholder Approval Requirement, the Lead Investor may elect to purchase up to an amount of New Securities that would not cause the Stockholder Approval Requirement.