Common use of Subsequent Financings Clause in Contracts

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) Other From the date hereof until the date that less than with the prior written consent 30% of the Purchasersshares of Preferred Stock issued at Closing remain outstanding, for a period of 181 days after the effective time of the Merger, neither the Company nor any Subsidiary 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 EquivalentsEquivalents without the consent of the Lead Purchaser as set forth on Exhibit D hereto (“Lead Purchaser”); provided, however, following the 6-month anniversary of the Closing Date, the Company may issue shares of Common Stock or Common Stock Equivalents at a price per share of Common Stock that is greater than $2.00, subject to adjustment for reverse and forward stock splits and the like. (b) From the date hereof until such time as no Purchaser holds any of the Series Alpha Preferred StockWarrants, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries 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) Other than with Subsequent from the prior written consent of the Purchasers, for a period of 181 date hereof until 30 days after the effective time of the MergerClosing Date, neither the Company nor any Subsidiary shall not issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock Shares or Common Stock EquivalentsShares Equivalents including the filing of any registration statement other than on Form S-8 or Form S-3 (solely for the resale of securities of the Company outstanding on the Closing Date). (b) From the date hereof until such time as no neither the Purchaser nor any of its Affiliates holds any of the Series Alpha Preferred StockWarrants, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Stock Shares or Common Stock Shares 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, receive additional shares of Common Stock Shares either (A) at a conversion price, exercise price or exchange rate or other price that is based upon, upon and/or varies with, with the trading prices of or quotations for the shares of Common Stock Shares at any time after the initial issuance of such debt or equity securities 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 Shares, or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to, an equity line of creditcredit or at-the-market financing (other than with the Placement Agent following the 30 day anniversary of the date hereof), 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) Other Except for Exempt Issuances, from the date hereof until the date that less than with the prior written consent 25% of the Purchasersshares of Preferred Stock issued at Closing remain outstanding, for a period of 181 days after the effective time of the Merger, neither the Company nor any Subsidiary 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 EquivalentsEquivalents at a per share price below the then in effect Conversion Price or Exercise Price, without the consent of the Purchasers. (b) Except for Exempt Issuances, from the date hereof until the date that less than 30% of the shares of Preferred Stock issued at Closing remain outstanding, neither the Company nor any Subsidiary shall issue, enter into any agreement to issue or announce the issuance or proposed issuance of any debt securities. (c) From the date hereof until such time as no Purchaser holds any of the Series Alpha Preferred StockSecurities, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries 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) Other than with Subsequent from the prior written consent of the Purchasers, for a period of 181 date hereof until 60 days after the effective time of the MergerClosing Date, neither the Company nor any Subsidiary shall not issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock Shares or Common Stock EquivalentsShares Equivalents including the filing of any registration statement other than on Form S-8. (b) From the date hereof until such time as no neither the Purchaser nor any of its Affiliates holds any of the Series Alpha Preferred StockWarrants, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Stock Shares or Common Stock Shares 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, receive additional shares of Common Stock Shares either (A) at a conversion price, exercise price or exchange rate or other price that is based upon, upon and/or varies with, with the trading prices of or quotations for the shares of Common Stock Shares at any time after the initial issuance of such debt or equity securities 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 Shares, or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to, an equity line of creditcredit or at-the-market financing (other than with the Placement Agent following 60 days after the Closing Date), 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.