Subsequent Financings. Notwithstanding anything contained herein, if at any time while this Note is outstanding the Company enters into any capital raising transaction, including without limitation an equity line transaction, a loan transaction or the sale of shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock, whether or not permitted under the Transaction Documents (“Subsequent Financing”), then following the closing of each such Subsequent Financing the Holder in its sole and absolute discretion may compel the Company to redeem up to the entire outstanding balance of the Note from the gross proceeds therefrom (“Redemption Amount”), provided however (a) if the Holder is holding other convertible notes similar to this Note whether issued prior or after the Issue Date of this Note (collectively with this Note, the “Notes”), the Redemption Amount may be applied to redeem any or all of the Notes specified by the Holder, (b) the Holder shall be notified in writing of the closing of each such Subsequent Financing within one (1) day following such closing, and (c) the Holder may elect not to exercise its right to such redemption in whole or in part, in which case the Company may not redeem any Notes in connection with such Subsequent Financing to the extent so rejected (for clarification, if the holder elects to reject any redemption in any instance, such rejection shall not affect the Holder’s redemption rights hereunder in the future). Further, in the event that the Holder demands redemption of a portion or the full balance of the Note within the first six (6) months from Note’s Issue Date, such Redemption Amount shall subject to then then applicable Prepayment Factor, as defined in the Note shall be applied). To the extent the Company is obligated to redeem any portion of the Notes pursuant to this Section but fails to do so, such default shall constitute an Event of Default under all the Notes.
Subsequent Financings. Without written consent of the Purchaser, the Company shall not undertake any Subsequent Financing (as defined below) within three (3) months of the Initial Closing. As long as any portion of the Note remains outstanding, the Company covenants and agrees to promptly notify in writing (a "Rights Notice") the Purchaser of the terms and conditions of any proposed offer or sale to, or exchange with (or other type of distribution to) any third party (a "Subsequent Financing"), of Common Stock or any equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering to the Purchaser a Rights Notice, the Company shall first deliver to the Purchaser a written notice of its intention to effect a Subsequent Financing ("Pre-Notice") within five (5) Business Days of receiving an applicable offer, which Pre-Notice shall ask the Purchaser if it wants to review the details of such financing. Upon the request of the Purchaser, and only upon a request by such Purchaser within three (3) Business Days of receipt of a Pre-Notice, the Company shall promptly, but no later than two (2) Business Days after such request, deliver a Rights Notice to such Purchaser. The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing (if known), the proposed closing date of the Subsequent Financing, which shall be no earlier than ten (10) Business Days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide the Purchaser an option (the "Rights Option") during the five (5) Business Days following delivery of the Rights Notice (the "Option Period") to inform the Company whether such Purchaser will purchase the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing, provided that, the amount the Purchaser may purchase shall not exceed $5,000,000. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, addit...
Subsequent Financings. (a) For a period of one (1) year following the Closing Date, the Company covenants and agrees to promptly notify (in no event later than five (5) days after making or receiving an applicable offer) in writing (a “Rights Notice”) each Purchaser of the terms and conditions of any proposed private offer or sale to, or exchange with (or other type of distribution to) any third party (a “Subsequent Financing”), of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock; provided, however, prior to delivering a Rights Notice to each Purchaser, the Company shall first deliver to each Purchaser a written notice of the Company’s intention to effect a Subsequent Financing (“Pre-Notice”) within three (3) Trading Days of making or receiving an applicable offer, which Pre-Notice shall ask such Purchaser if it wants to review the details of such financing. Each Purchaser must notify the Company within three (3) Trading Days of receipt of the Pre-Notice that such Purchaser elects to review the details of such financing (“Pre-Notice Acceptance”). Upon the Company’s receipt of a Pre-Notice Acceptance, and only upon the Company’s receipt of a Pre-Notice Acceptance, the Company shall promptly, but no later than two (2) Trading Days after such receipt, deliver a Rights Notice to such Purchaser. The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of all investors participating in the Subsequent Financing, the proposed closing date of the Subsequent Financing, which shall be within twenty (20) calendar days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Purchaser an option (the “Rights Option”) during the five (5) Trading Days following delivery of the Rights Notice (the “Option Period”) to inform the Company whether such Purchaser will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing. For the avoidance of doubt, the Purchasers may elect to participate in up to 100% of the Subsequent Financing. If any Purchaser elects not to participate in such Subsequent Financing, the other Purchasers may participate on a pro-rata basis so long as such participation in th...
Subsequent Financings. (a) So long as any of the Series B Shares remain outstanding, if, at any time after a Closing Date, the Company enters into any sale, exchange (or other type of distribution to) with any third party of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock (a “Subsequent Financing”) on terms more favorable than the terms governing the Series B Shares, then the Purchasers in their sole discretion may exchange the Series B Shares, valued at their Liquidation Preference Amount (as defined in the Certificate of Designation), together with accrued but unpaid dividends (which dividend payments shall be payable, at the sole option of the Purchasers, in cash or in the form of the new securities to be issued in the Subsequent Financing), for the securities issued or to be issued in the Subsequent Financing. The Company covenants and agrees to promptly notify in writing the Purchasers of the terms and conditions of any such proposed Subsequent Financing.
(b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A "Permitted Financing" shall mean (i) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (ii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to a Closing Date (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Purchasers) or issued pursuant to this Agreement, (iii) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as such issuances are not for the purpose of raising capital, (iv) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to Company’s stock option plans and employee stock purchase plans approved by the Company’s board of directors, so long as such issuances in the aggregate do not exceed the number of shares of Common Stock (or options to purchase such number of shares of Common Stock) issuable pursuant to such plans as they existed on March 1, 2010, (v) securities issued pursuant to a bona fide firm underwritten public offering of the Company’s securities, (vi) the Company’s private placement of up to $5,000,000 of Common Stock at a price per share of $0.50 or more, (vii) the payment of liquidated damages pursuant to...
Subsequent Financings. 19 ARTICLE IV Conditions...................................................................................20 Section 4.1 Conditions Precedent to the Obligation of the Company to Close and to Sell the Securities.........................................................................20 Section 4.2 Conditions Precedent to the Obligation of the Purchasers to Close and to Purchase the Securities.........................................................................21
Subsequent Financings. Except as otherwise contemplated in connection with the Merger, as long as Investor holds any Preferred Shares, Company will not: (1) enter into any agreement that in any way restricts its ability to enter into any agreement, amendment or waiver with Investor, including without limitation any agreement to offer, sell or issue to Investor any preferred stock, common stock or other securities of Company; (2) issue or enter into or amend an agreement pursuant to which it may issue any shares of Common Stock, other than (a) for restricted securities with no registration rights, (b) in connection with a strategic acquisition, (c) in an underwritten public offering, or (d) at a fixed price; or (3) issue or amend any debt or equity securities convertible into, exchangeable or exercisable for, or including the right to receive, shares of Common Stock (a) at a conversion price, exercise price or exchange rate or other price that is based upon or varies with, the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of the security or (b) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of the security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock. For sake of clarity, Company may enter into an unregistered financing of debt or restricted stock at any fixed price with no registration rights and may undertake the transactions contemplated in connection with Merger without restriction.
Subsequent Financings. (a) Other than with the prior written consent of the Purchasers, for a period of 181 days after the effective time of the Merger, the Company shall not issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents.
(b) From the date hereof until such time as no Purchaser holds any of the Series Alpha Preferred Stock, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company of Common Stock or Common Stock Equivalents (or a combination of units thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive, additional shares of Common Stock either (A) at a conversion price, exercise price or exchange rate or other price that is based upon, and/or varies with, the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securities or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to, an equity line of credit, whereby the Company may issue securities at a future determined price. Any Purchaser shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy shall be in addition to any right to collect damages. Notwithstanding the foregoing, this Section 4.17 shall not apply in respect of an Exempt Issuance.
Subsequent Financings. (a) Until the first anniversary of the Closing Date, the Company hereby grants to each Purchaser that (A) owns Notes, Conversion Shares, Warrant Shares or AIR Shares immediately prior to the issuance of the "New Securities" (as defined in Section 3.12(b)), and (B) was not an officer or director of the Company as of the Closing Date (any such Purchaser, for such purpose, an "Eligible Purchaser"), a right (the "Preemptive Right") to purchase all or any part of such Eligible Purchaser's pro rata share of any New Securities that the Company may, from time to time, propose to sell and issue. The pro rata share for each Eligible Purchaser, for purposes of the Preemptive Right, is the ratio of (x) the number of shares of Common Stock then held or deemed to be held by such Eligible Purchaser immediately prior to the issuance of the New Securities (assuming the full conversion of the Notes and the full exercise of the Warrants and the AIRs), to (y) the total number of shares of Common Stock of the Company outstanding immediately prior to the issuance of the New Securities (after giving effect to the full conversion of the Notes and the full exercise of the Warrants and the AIRs).
(b) For purposes of this Section 3.12, "New Securities" shall mean any Common Stock, whether or not authorized on the date hereof, and rights, options or warrants to purchase Common Stock and securities of any type whatsoever that are, or may become, convertible into Common Stock; provided, however, that "New Securities" does not include the following:
Subsequent Financings. 1. As long as the Note is outstanding in any amount, Company will not enter into any agreement that in any way restricts its ability to enter into any agreement, amendment or waiver with Investor, including without limitation any agreement to offer, sell or issue to Investor any preferred stock, common stock or other securities of Company.
2. Until six months after Closing, Company will not enter into any financing that uses a shelf registration, contains registration rights or otherwise provides for the issuance of free trading stock, other than: (a) with Investor, (b) in connection with a strategic transaction, or (c) the sale of restricted Common Stock at a fixed price. For the avoidance of doubt, Company may enter into any unregistered financing of nonconvertible debt or restricted stock with no registration rights.
3. As long as any part of the Note is outstanding, Company will not agree or enter into any equity or convertible financing pursuant to which shares of Common Stock or Common Stock equivalents may effectively be issued at a variable price or where the price or number of shares are subject to any type of variability or reset feature. Provided, however, that Company may enter into any transaction: (a) with Investor, (b) for unregistered, non-convertible debt, (c) for restricted stock with no registration rights, (d) for Common Stock at a fixed price at no more than a 5% discount to the most recent closing price of the Common Stock on the Trading Market, (e) reasonably equivalent value given as consideration for a strategic acquisition, or (f) that includes an immediate, unconditional offer to Investor to purchase the Note by wire transfer of immediately available funds in the amount of 140% of the then outstanding Liquidation Value.
4. So long as any part of the Note is outstanding, upon any issuance by Company or any of its subsidiaries of any security with any term more favorable to the holder of such security or with a term in favor of the holder of such security that was not similarly provided to Investor, then Company will notify Investor of such additional or more favorable term and such term, at Investor’s option, shall become a part of the transaction documents with Investor. The types of terms contained in another security that may be more favorable to the holder of such security include, but are not limited to, terms addressing conversion discounts, prepayment rate, conversion look back periods, interest rates, original issue discou...
Subsequent Financings. In the event on or before two (2) years from the date of this Agreement the Company enters into a securities purchase agreement or similar agreement to issue securities to any Purchaser in a financing, or series of financings, Seller shall have the right, but not the obligation, to purchase up to 20% of the securities proposed to be issued to such Purchaser under the same terms and conditions as offered to Purchasers (“Purchase Right”). In the event any Purchaser is obligated to offer the Purchase Right to Seller hereunder, such Purchaser shall provide written notice of such Purchase Right to Seller setting forth the terms and conditions of the Purchase Right (“Option Notice”). Seller shall have three (3) business days following receipt of the Option Notice to notify the Purchaser, in writing, of Seller’s election to exercise the Purchase Right. In the event Seller exercises the Purchase Right by delivering written notice of such election to the Purchaser with three (3) business days following receipt of the Option Notice, Purchaser shall assign its right to acquire the securities to Seller or otherwise assign the Purchase Right to the Seller, consistent with the terms and conditions set forth in this Section 4.1. In the event the Purchaser does not receive written notice from Seller of its election to exercise the Purchase Right, the Purchaser shall have the right to consummate the purchase of the securities from the Company, in whole or in part on substantially the terms and conditions set forth in the Option Notice. In the event the Purchaser fails to provide Seller with the Option Notice, Seller’s sole remedy shall be to provide written notice to the Purchaser of such Purchaser’s failure to provide the required Option Notice, and to immediately tender payment for such purchase to the Purchaser. Failure to pay the purchase price for the exercise of the Purchase Right within five (5) business days following Seller’s receipt of actual or constructive notice of the financing or series of financings giving rise to the Purchase Right shall constitute a waiver of Seller’s right to exercise the Purchase Right. The Purchasers agree and covenant not to enter into any agreement with the Company to purchase securities unless such agreement is assignable to Seller and/or such agreement includes reference to the Purchase Right granted to Seller hereunder.
