Additional Issuance of Securities. The Company agrees that during the Restricted Period, the Company shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt (with or related to equity), any preferred stock or any purchase rights) (“Additional Issuance”). Notwithstanding the foregoing, this Section 4(j) shall not apply in respect of the following: (i) issuances pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; provided that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; (iii) the issuance of securities to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Shares.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Mullen Automotive Inc.), Securities Purchase Agreement (Mullen Automotive Inc.), Securities Purchase Agreement (Mullen Automotive Inc.)
Additional Issuance of Securities. The Company agrees that during the Restricted Period, the Company shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt (with or related to equity), any preferred stock or any purchase rights) (“Additional Issuance”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the issuance of the following: (i) issuances Ordinary Shares or standard options to purchase Ordinary Shares to directors (who are also employees of the Company), officers, employees or consultants of the Company pursuant to acquisitionsan Approved Share Plan (as defined below), joint venturesprovided that the exercise price of any such options is not lowered, license arrangements, leasing arrangements none of such options are amended to increase the number of shares issuable thereunder and similar transaction arrangementsnone of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects Buyer; (ii) an issuance of shares of Common Stock Ordinary Shares issued upon the conversion or exercise of Convertible Securities issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; provided that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; (iii) the issuance of securities to employees, directors and other third parties under an Approved Share PlanConvertible Notes; provided that provisions of such Approved Share Plan that were in effect on (iv) Conversion Shares; (v) the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, Warrants; and (ivvi) the Warrant Shares; (vii) the issuance of shares in regards to the Convertible NotesCompany’s acquisition of 51% of Holu Hou Energy LLC (“HHE”) where such shares are issuable based on an earn-out structure as agreed upon between the Company and HHE; and (viii) additional shares that are issuable to an escrow account for the benefit of Samsung Electronics Co., Ltd. (“Samsung”) as collateral for settlement payments due to Samsung. The Company further agrees that, without prior consent of the Buyer, until the earlier of (A) twelve (12) months after Closing or (b) the date on which Buyer has sold or disposed of all Securities, the Conversion Shares, the Warrants and the Warrant Company will not issue any floating conversion rate or variable priced securities convertible into Ordinary Shares.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Borqs Technologies, Inc.), Securities Purchase Agreement (Borqs Technologies, Inc.)
Additional Issuance of Securities. (i) The Company agrees that during for the period commencing on the date hereof and ending on the date immediately following the ninetieth (90th) calendar day after the Initial Closing Date (such period, the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or register or amend any outstanding registration statements or file any shelf registration statements or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act)), any Convertible Securities, debt (with or related to equity), any preferred stock or any purchase rights) (“Additional Issuance”). Notwithstanding the foregoing, this Section 4(j4(j)(i) shall not apply during the Restricted Period in respect of (A) the following: issuance of Options or Convertible Securities issued under any Approved Stock Plan, so long as (i) issuances the aggregate number of shares issued and issuable pursuant thereto does not exceed 5% of the Common Stock issued and outstanding immediately prior to acquisitions, joint ventures, license arrangements, leasing arrangements the date hereof and similar transaction arrangements; (ii) an issuance the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers, (B) any shares of Common Stock issued by the Company upon the conversion conversion, exercise, or exercise settlement of (or otherwise pursuant to the terms of) Convertible Securities issued prior (other than standard options to the date hereof purchase Common Stock or Convertible Securities that may be other incentive equity awards issued pursuant to an agreement in effect as of Approved Stock Plan that are covered by clause (A) above) outstanding on the date hereof; provided that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed hereof and referred to in the SEC DocumentsRegistration Statement (other than standard options to purchase Common Stock or other incentive equity awards issued pursuant to an Approved Stock Plan that are covered by clause (A) above); andprovided, provided further that the conversion conversion, exercise or exercise other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard options to purchase Common Stock or other incentive equity awards issued pursuant to an Approved Stock Plan that are covered by clause (A) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (nor is any provision of any such Convertible SecuritiesA) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock or other incentive equity awards issued pursuant to an Approved Stock Plan that are covered by clause (A) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; of the Buyers, (iiiC) the issuances of the Underlying Shares, (D) any sale or issuance of securities to employees, directors and other third parties under an Approved Share Planagreement, the terms of which have been approved by the Required Holders, providing for an “at-the-market” offering within the meaning of Rule 415(a)(4) of the Securities Act (an “ATM Sales Agreement”) other than a sale or issuance in which a single identified investor or group of identified investors purchases in excess of three million dollars ($3,000,000) in the aggregate of Common Stock, which shall include that certain Sales Agreement, dated as of February 6, 2023, by and between the Company and ▇▇▇▇▇▇▇ & Company, LLC and any replacement thereof, (E) any sale or issuance of securities pursuant to that certain Business Combination Agreement, dated as of March 22, 2021, by and among JAWS Spitfire Acquisition Corporation, Spitfire Merger Sub, Inc. and the Company, as amended by Amendment No. 1 to the Business Combination Agreement, dated as of July 20, 2021, by and among JAWS Spitfire Acquisition Corporation, Spitfire Merger Sub, Inc. and the Company, as in effect as of the date hereof and without giving effect to any amendment, modification, waiver or supplement thereto (the “Business Combination Agreement”); provided provided, that provisions the sale or issuance of any such Approved Share Plan securities is made solely pursuant to the Business Combination Agreement that were was in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment the issuance price of any such securities is not lowered, none of such securities are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such securities are otherwise materially changed in any manner that adversely affects any Buyer, including any amendment to increase of the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and Buyers or (ivF) the issuance of securities of the Convertible NotesCompany or any Subsidiary of the Company as consideration in acquisitions, divestitures, partnerships, licenses, collaborations or strategic transactions approved by the Conversion Sharesboard of directors or a majority of the members of a committee of directors of the Company or applicable Subsidiary established for such purpose, provided that any such issuance shall only be to a Person (or to the Warrants and the Warrant Shares.equity holders of a Person) which is, itself or through its subsidiaries or controlled affiliates, an operating company or an asset in a
Appears in 2 contracts
Sources: Securities Purchase Agreement (Velo3D, Inc.), Securities Purchase Agreement (Velo3D, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes. The Company agrees that during for a period commencing on a Closing Date hereunder, through, and including, one (1) year anniversary of the Closing Date (each, a “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly:
(i) except as set forth in Section 4(cc), file a registration statement under the 1933 Act relating to securities that are not the Underlying Securities (other than a registration statement on Form S-4, Form S-8 or such supplements or amendments to registration statements that are outstanding and have been declared effective by the SEC as of the date hereof (including the Registration Statement, provided that the Registration Statement shall not directly or indirectly have been declared effective as of the date hereof) (solely to the extent necessary to keep such registration statements effective and available and not with respect to any Subsequent Placement)); or
(ii) issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act)), any Convertible Securities, debt Securities (with or related to equityas defined below), any debt, any preferred stock shares or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(m) shall not apply in respect of the following: issuance of (iA) issuances Ordinary Shares or standard options to purchase Ordinary Shares to directors, officers, consultants, advisors, or employees of the Company in their capacity as such pursuant to acquisitionsan Approved Share Plan (as defined below), joint venturesprovided that (1) all such issuances (taking into account the Ordinary Shares issuable upon exercise of such options) after the date hereof pursuant to this clause (A) do not, license arrangementsin the aggregate, leasing arrangements exceed more than 15% of the Ordinary Shares issued and outstanding on an annual basis immediately prior to the date hereof and (2) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that materially and adversely affects any of the Buyers, other than in connection with adjustments for share splits, share dividends, share combinations, recapitalizations or other similar transaction arrangementstransactions; (iiB) an issuance of shares of Common Stock Ordinary Shares issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Ordinary Shares issued pursuant to an Approved Share Plan that are covered by clause (A) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard options to purchase Ordinary Shares issued pursuant to an Approved Share Plan that are covered by clause (A) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Ordinary Shares issued pursuant to an Approved Share Plan that are covered by clause (nor is any provision of any such Convertible SecuritiesA) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Ordinary Shares issued pursuant to an Approved Share Plan that are covered by clause (A) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iiiC) the issuance Conversion Shares; and (D) issuances of debt or equity securities of the Company to employeesany Buyer or affiliates thereof (each of the foregoing in clauses (A) through (D), directors and other third parties under an collectively the “Excluded Securities”). “Approved Share Plan; provided that provisions ” means any employee benefit plan which has been approved by the board of such Approved Share Plan that were in effect on directors of the date immediately Company prior to or subsequent to the date of this Agreementhereof pursuant to which Ordinary Shares and standard options to purchase Ordinary Shares may be issued to any employee, remain consultant, advisor, officer or director for services provided to the Company in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, their capacity as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Sharessuch.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Top KingWin LTD), Securities Purchase Agreement (Top KingWin LTD)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Preferred Shares or Warrants, the Company will not, without the prior written consent of the Required Holders, directly or indirectly, issue any other securities that would cause a breach or default under the Certificate of Designations or the Warrants. The Company agrees that during the Restricted Periodunless Stockholder Approval (as defined herein) is obtained, the Company shall not effect (i) any Dilutive Issuance (as defined in the Certificate of Designations) or (ii) without the prior written consent of the Required Holders, issue or sell (or enter into any agreement or publicly announce the intention to grant, issue or sell) securities containing any anti-dilution price-based adjustments. The Company further agrees that for the period commencing on the date hereof and ending on the date that is ninety (90) days following the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this Section 4(k) on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt Securities (with or related to equityas defined below), any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter), is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the following: issuance of (i) issuances pursuant to acquisitionsshares of Common Stock or other awards convertible, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an issuance of exercisable for or exchangeable for shares of Common Stock issued or issuable to directors, officers, employees or other service providers of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such awards) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 10.0% of the shares of Common Stock issued and outstanding immediately prior to the date hereof and (2) the exercise price of any such options is not lowered and none of such options are amended to increase the number of shares issuable thereunder or extend the term of such options; (ii) shares of Common Stock issued or issuable upon the conversion or exercise of Convertible Securities (other than shares of Common Stock issued or issuable pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard options to purchase shares of Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than those issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that materially adversely affects any Buyerof the Buyers; (iii) the issuance Preferred Shares, (iv) the Conversion Shares, (v) the Warrant Shares and any other securities issued or issuable pursuant to this Agreement or any of the Transaction Documents, including, without limitation, any shares of Common Stock issued or issuable pursuant to Section 9 of the Certificate of Designations, (vi) securities to employeesissued as consideration for the acquisition of another entity by the Company by merger, directors and purchase of substantially all of the assets or other third parties under an Approved Share Plan; reorganization or bona fide joint venture agreement, provided that provisions such issuance is approved by the majority of the disinterested directors of the Company and provided that such Approved Share Plan securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that were require or permit the filing of any registration statement in effect on connection therewith during the date Restricted Period and such issuance does not, in the aggregate, exceed more than 5% of the shares of Common Stock issued and outstanding immediately prior to the date hereof, (vii) the Series F Preferred Stock pursuant to that certain Certificate of this AgreementDesignations establishing the rights, remain in effect without amendment in any manner that adversely affects any Buyerpreferences, restrictions and other matters relating to the Series F Preferred Stock (the “Series F Certificate of Designations”), including any amendment to increase the number shares of shares Common Stock issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed accordance with the SEC on December 30Series F Certificate of Designations, 2024 for (viii) the annual stockholder meeting Series F-1 Preferred Stock pursuant to increase that certain Certificate of Designations establishing the number rights, preferences, restrictions and other matters relating to the Series F Preferred Stock (the “Series F-1 Certificate of Designations”), including shares of Common Stock issuable under in accordance with the 2022 Equity Incentive PlanSeries F-1 Certificate of Designations, as amended(ix) the Series G Preferred Stock pursuant to that certain Certificate of Designations establishing the rights, preferences, restrictions and other matters relating to the Series G Preferred Stock (the “Series G Certificate of Designations”), including shares of Common Stock issuable in accordance with the Series F Certificate of Designations, (x) securities issued to the Placement Agents in connection with the transactions pursuant to this Agreement and any securities underlying the securities issued to the Placement Agents, if applicable, and (ivxi) securities issued pursuant to the issuance Palladium Agreement (as defined herein) and any securities underlying the securities issued pursuant to the Palladium Agreement (each of the Convertible Notesforegoing in clauses (i) through (xi), collectively the Conversion Shares“Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock or other awards convertible, exercisable for or exchangeable for shares of Common Stock may be issued to any employee, officer, director or other service provider for services provided to the Warrants and the Warrant SharesCompany and/or a Subsidiary in their capacity as such.
Appears in 2 contracts
Sources: Securities Purchase Agreement (PharmaCyte Biotech, Inc.), Securities Purchase Agreement (TNF Pharmaceuticals, Inc.)
Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 30th calendar day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible SecuritiesCommon Stock Equivalents (as defined below), debt (with or related to equity)any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the following: issuance of (i) issuances pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an issuance of shares of Common Stock issued upon or standard options to purchase Common Stock to directors, officers, consultant, advisor or employees of the conversion or exercise of Convertible Securities issued prior to the date hereof or Convertible Securities that may be issued Company in their capacity as such pursuant to an agreement in effect Approved Stock Plan (as of the date hereof; defined below), provided that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities options is not lowered, none of such Convertible Securities options are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities options are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iiiii) shares of Common Stock issued upon the issuance conversion or exercise of securities Common Stock Equivalents (other than standard options to employees, directors and other third parties under purchase Common Stock issued pursuant to an Approved Share Plan; Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Common Stock Equivalent is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Approved Share Plan Common Stock Equivalent that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment the conversion, exercise or issuance price of any such Common Stock Equivalents (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Common Stock Equivalents (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Common Stock Equivalents (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any Buyerof the Buyers; (iii) the Warrant Shares, including any amendment to increase (iv) if the number VWAP of shares issuable thereunder, except for the proposal included Common Stock exceeds 150% of the Exercise Price (as defined in the Company’s preliminary proxy statement filed Warrants) for ten (10) consecutive Trading Days at any time after the Closing Date, shares of Common Stock issued or issuable pursuant to the Permitted ATM (each, an “Excluded ATM Issuance”) and (v) any shares of Common Stock issued or issuable in connection with any bona fide strategic or commercial alliances, sponsored research, collaboration, technology license, development, OEM, marketing or other similar agreements, acquisitions, mergers, licensing arrangements, and strategic partnerships, provided, that (A) the primary purpose of such issuance is not to raise capital as reasonably determined, (B) such issuance is not to a Person whose primary business is investing in securities and (C) the purchaser or acquirer or recipient of the securities in such issuance solely consists of either (I) the actual participants in such strategic or commercial alliance, strategic or commercial licensing arrangement or strategic or commercial partnership, (II) the actual owners of such assets or securities acquired in such acquisition or merger or (III) the stockholders, partners, employees, consultants, officers, directors or members of the foregoing Persons, in each case, which is, itself or through its subsidiaries, an operating company or an owner of an asset, in a business synergistic with the SEC on December 30, 2024 for business of the annual stockholder meeting Company and shall provide to increase the number Company additional benefits in addition to the investment of shares issuable under the 2022 Equity Incentive Plan, as amendedfunds, and (ivIV) the issuance number or amount of securities issued to such Persons by the Company shall not be disproportionate to each such Person’s actual participation in (or fair market value of the Convertible Notescontribution to) such strategic or commercial alliance or strategic or commercial partnership or ownership of such assets or securities to be acquired by the Company, as applicable (each of the Conversion Sharesforegoing in clauses (i) through (iv), collectively the Warrants “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer, consultant, advisor or director for services provided to the Warrant SharesCompany in their capacity as such.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Marker Therapeutics, Inc.), Securities Purchase Agreement (Marker Therapeutics, Inc.)
Additional Issuance of Securities. (i) The Company agrees that during that, without the prior written consent of the Required Holders (as defined below) for (x) the period commencing on the date hereof and ending on the date immediately following the thirtieth (30th) calendar day after the Closing Date and (y) the period commencing on the date of the issuance of the Anniversary Warrants, if any, and ending on the date immediately following the thirtieth (30th) calendar day after the issuance of any such Anniversary Warrants (each such period, a “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or register or amend any outstanding registration statements or file any shelf registration statements or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt (with or related to equity), any preferred stock or any purchase rights) (collectively a “Additional Securities Issuance”). Notwithstanding the foregoing, this Section 4(j4(j)(i) shall not apply during a Restricted Period in respect of (A) the following: issuance of Options or Convertible Securities issued under any Approved Stock Plan (as defined below), so long as (i) issuances pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an issuance the aggregate number of shares issued and issuable pursuant thereto does not exceed 5% of the Common Stock issued upon the conversion or exercise of Convertible Securities issued and outstanding immediately prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of and (ii) the date hereof; provided that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) price of any such Convertible Security Options is made solely pursuant to not lowered and the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities is not lowered, none of such Options or Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities options are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; of the Buyers, (iiiB) the issuance issuances of securities to employees, directors and other third parties under an Underlying Shares or (C) the Concurrent Common Stock Offering. An “Approved Share Stock Plan; provided that provisions ” means any security-based compensation plan which has been approved by the Board of such Approved Share Plan that were in effect on Directors of the date immediately Company prior to the date of this Agreementhereof (or any subsequent amendments thereto), remain pursuant to which Common Stock, options to purchase Common Stock and other incentive equity awards may be issued to any employee, officer, consultant or director for services provided to the Company in effect without amendment in any manner that adversely affects any Buyertheir capacity as such, including any amendment to increase the number of shares issuable thereunder, except and not for the proposal included purpose of raising capital, pursuant to any consulting agreement, advisory agreement or independent contractor agreement approved by the Board of Directors or the compensation committee thereof. In addition to the foregoing, prior to the receipt of the Requisite Stockholder Approval, the Company shall not conduct any Securities Issuance that could, directly or indirectly, result in the parties to the Voting Agreements collectively holding less than fifty one percent (51%) of the Company’s preliminary proxy outstanding Common Stock. In addition, until such date as there is no longer any Purchased Preferred Stock Outstanding, the Company shall not file a registration statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number resale of any shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant SharesCommon Stock beneficially owned by Narrogal Nominees PTY LTD ATF G▇▇▇▇▇▇ ▇ ▇’▇▇▇▇▇ Family Trust or beneficially owned by G▇▇▇▇▇▇ ▇ ▇’▇▇▇▇▇ or any of his affiliates.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Prairie Operating Co.), Securities Purchase Agreement (Prairie Operating Co.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holder, issue any Notes or Warrants (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 20th Trading Day after the later of (i) the most recent date of issuance of any of the Notes or the Incremental Notes and (ii) the Registration Effectiveness Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not file a registration statement under which it proposes to directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible SecuritiesSecurities (as defined below), debt (with or related to equity)any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the following: issuance of (i) issuances pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an issuance of shares of Common Stock issued or standard options to purchase shares of Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) all such issuances (taking into account the shares of Common Stock issuable upon the conversion or exercise of Convertible Securities such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 5% of the Common Stock issued and outstanding immediately prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of and (2) the date hereof; provided that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities options is not lowered, none of such Convertible Securities options are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities options are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iiiii) shares of Common Stock issued upon the issuance conversion or exercise of securities Convertible Securities (other than standard options to employees, directors and other third parties under purchase shares of Common Stock issued pursuant to an Approved Share Plan; provided that provisions of such Approved Share Stock Plan that were in effect on the date immediately are covered by clause (i) above) issued prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Shares.date
Appears in 2 contracts
Sources: Securities Purchase Agreement (Interactive Strength, Inc.), Securities Purchase Agreement (Interactive Strength, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Preferred Shares or Warrants, the Company will not, without the prior written consent of the Required Holders, directly or indirectly, issue any other securities that would cause a breach or default under the Certificate of Designations or the Warrants. The Company agrees that during the Restricted Periodunless Stockholder Approval (as defined herein) is obtained, the Company shall not affect any Dilutive Issuance (as defined in the Certificate of Designations). The Company further agrees that for the period commencing on the date hereof and ending on the date immediately following the 90th day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt Securities (with or related to equityas defined below), any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter), is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the following: issuance of (i) issuances pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an issuance of shares of Common Stock issued or issuable to directors, officers, employees or other service providers of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such awards) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 5% of the shares of Common Stock issued and outstanding immediately prior to the date hereof and (2) the exercise price of any such options is not lowered and none of such options are amended to increase the number of shares issuable thereunder or extend the term of such options; (ii) shares of Common Stock issued or issuable upon the conversion or exercise of Convertible Securities (other than shares of Common Stock issued or issuable pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard options to purchase shares of Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than those issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that materially adversely affects any Buyerof the Buyers; (iii) the issuance Preferred Shares, (iv) the Conversion Shares, (v) the Warrant Shares and any other securities issued or issuable pursuant to this Agreement or any of the Transaction Documents, including, without limitation, any shares of Common Stock issued or issuable pursuant to Section 9 of the Certificate of Designations, and (vi) securities to employeesissued as consideration for the acquisition of another entity by the Company by merger, directors and purchase of substantially all of the assets or other third parties under an Approved Share Plan; reorganization or bona fide joint venture agreement, provided that provisions such issuance is approved by the majority of the disinterested directors of the Company and provided that such Approved Share Plan securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that were require or permit the filing of any registration statement in effect on connection therewith during the date Restricted Period and such issuance does not, in the aggregate, exceed more than 5% of the shares of Common Stock issued and outstanding immediately prior to the date hereof (each of this Agreementthe foregoing in clauses (i) through (vi), remain collectively the “Excluded Securities”) and (vii) provided the Equity Conditions (as defined in effect without amendment the Certificate of Designations) are then satisfied and the closing price of the Common Stock on the Trading Market equals or exceeds 200% of the initial Conversion Price (as defined in any manner that adversely affects any Buyerthe Certificate of Designations) for three consecutive Trading Days, including any amendment to increase the number sales of shares issuable thereunder, except for of Common Stock or Convertible Securities at a per share purchase price in excess of 160% of the proposal included initial Conversion Price (as defined in the Company’s preliminary proxy statement filed with the SEC on December 30Certificate of Designations) (as adjusted for stock splits, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Planstock dividends, as amendedstock combinations, recapitalizations and (iv) the issuance similar events; provided that if 90% of the Convertible Notesaggregate Stated Value (as defined in the Certificate of Designations) of the Preferred Shares has been paid in full to the Buyers or otherwise converted to Common Stock, then the Conversion SharesCompany may sell shares of Common Stock at a per share purchase price in excess of 130% of the exercise price of the Warrants). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock or other awards convertible, exercisable for or exchangeable for shares of Common Stock may be issued to any employee, officer, director or other service provider for services provided to the Warrants and the Warrant SharesCompany and/or a Subsidiary in their capacity as such.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Synaptogenix, Inc.), Securities Purchase Agreement (Synaptogenix, Inc.)
Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 60th calendar day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt Securities (with or related to equityas defined below), any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the following: issuance of (i) issuances shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to acquisitionsan Approved Stock Plan (as defined below), joint venturesprovided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, license arrangementsin the aggregate, leasing arrangements exceed more than 5% of the Common Stock issued and similar transaction arrangementsoutstanding immediately prior to the date hereof and (2) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (nor is any provision of any such Convertible Securitiesi) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; ( (iii) any shares of Common Stock issued or issuable in connection with any bona fide strategic or commercial alliances, acquisitions, mergers, licensing arrangements, and strategic partnerships, provided, that (x) the primary purpose of such issuance is not to raise capital as reasonably determined, and (y) the purchaser or acquirer or recipient of the securities in such issuance solely consists of either (I) the actual participants in such strategic or commercial alliance, strategic or commercial licensing arrangement or strategic or commercial partnership, (II) the actual owners of such assets or securities acquired in such acquisition or merger or (III) the stockholders, partners, employees, consultants, officers, directors or members of the foregoing Persons, in each case, which is, itself or through its subsidiaries, an operating company or an owner of an asset, in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, and (z) the number or amount of securities issued to employees, directors and other third parties under an Approved Share Plan; provided that provisions such Persons by the Company shall not be disproportionate to each such Person’s actual participation in (or fair market value of the contribution to) such strategic or commercial alliance or strategic or commercial partnership or ownership of such Approved Share Plan that were in effect on the date immediately prior assets or securities to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in be acquired by the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amendedapplicable, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and (v) the Warrant SharesShares (each of the foregoing in clauses (i) through (vi), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 2 contracts
Sources: Securities Purchase Agreement (BIMI International Medical Inc.), Securities Purchase Agreement (BOQI International Medical, Inc.)
Additional Issuance of Securities. The (i) So long as any Warrants or Notes remain outstanding, the Company agrees that during will not, without the Restricted Periodprior written consent of the Required Holders (as defined below), issue any Warrants or Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or Warrants. In addition, so long as any Warrants or Notes remain outstanding, the Company and each Subsidiary shall be prohibited from effecting, or entering into an agreement to effect, any Subsequent Placement (as defined below) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which the Company or any Subsidiary (i) issues or sells any Convertible Securities either (A) at a conversion, exercise 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 Convertible 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 Convertible Securities or upon the occurrence of specified or contingent events directly or indirectly issuerelated to the business of the Company or the market for the Common Stock, offerother than pursuant to a customary “weighted average” anti-dilution provision or customary adjustments for stock splits, sellstock dividends, grant stock combinations, recapitalizations and similar events or (ii) enters into any option agreement whereby the Company or right to purchaseany Subsidiary may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights); provided that, for avoidance of doubt (x) the entry into any “at-the-market” offering within the meaning of Rule 415(a)(4) of the Securities Act (an “ATM Issuance”) whereby the Company or any Subsidiary may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights) and any issuance of any securities pursuant thereto, or otherwise dispose (y) the entry into any agreement to effect any issuance by the Company of Common Stock or Convertible Securities (or a combination of units thereof) involving a Variable Rate Transaction that constitutes an Exempt Issuance (as defined below) and any issuance of any securities pursuant thereto, shall not be considered a “Variable Rate Transaction”. An “Exempt Issuance” means the issuance of (or announce any issuancea) Common Stock, offeroptions, salerestricted stock awards, grant of any option or right to purchase restricted stock units, stock appreciation rights or other disposition of) any equity security awards to employees, officers, directors of the Company pursuant to an Approved Stock Plan or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt (with or related to equity), any preferred stock or any purchase rights) (“Additional Issuance”). Notwithstanding the foregoing, this Section 4(j) shall not apply in respect of the followingoption plan or other agreement duly adopted by: (i) issuances pursuant the Board of Directors or the compensation committee thereof and approved by the stockholders of the Company for the purposes of providing compensation for services provided to acquisitionsthe Company in their capacity as such, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; or (ii) the Board of Directors or the compensation committee thereof as an issuance of shares of Common Stock inducement grant in accordance with Nasdaq Listing Rule 5635(c)(4), (b) any securities issued upon the exercise or exchange of or conversion or exercise of any Convertible Securities issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; provided that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) and outstanding on the date immediately prior to the date of this Agreement, provided that such securities have not been amended since the conversion or exercise price date of any such Convertible Securities is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) this Agreement to increase the number of shares issuable thereunder and none such securities or to decrease the exercise price, exchange price or conversion price of such securities, (c) securities issued as consideration in acquisitions, divestitures, partnerships, licenses, collaborations or strategic transactions approved by the Board of Directors or a majority of the terms members of a committee of directors established for such purpose, which acquisitions, divestitures, partnerships, licenses, collaborations or conditions of strategic transactions can have a Variable Rate Transaction component, provided that any such Convertible Securities are otherwise materially changed issuance shall only be to a Person (or waived to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities, or (whether d) any securities issued to consultants, advisors or independent contractors as compensation for services provided to the Company in their capacity as such, and not for the purpose of raising capital, pursuant to any consulting agreement, advisory agreement or independent contractor agreement approved by the Company Board of Directors or the holder compensation committee thereof) in any manner that adversely affects any Buyer; (iii) the issuance of securities to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Shares.
Appears in 2 contracts
Sources: Securities Purchase and Exchange Agreement (Mohawk Group Holdings, Inc.), Securities Purchase Agreement (Mohawk Group Holdings, Inc.)
Additional Issuance of Securities. (a) The Company agrees that during for the period commencing on the date hereof and ending on the earlier of the sixtieth (60th) day after the Closing Date and the date upon which all Warrants have been exercised (the “Restricted Period”), the Company shall not (i) directly or indirectly issue, offer, sell, grant any option option, restricted stock unit or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security shares of Common Stock or any equity-linked Common Stock Equivalents or related security (includingii) file any new registration statement or amendment or supplement thereto, without limitationother than the Prospectus, amendments or supplements to registration statements filed prior to the date hereof, or registration statements on Form S-8 in connection with any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt (with or related to equity), any preferred stock or any purchase rights) (“Additional Issuance”)employee benefit plan. Notwithstanding the foregoing, this Section 4(j4.12(a) shall not apply in respect of the following: issuance of (collectively, the “Exempt Issuances”) (i) issuances shares of Common Stock or standard options to purchase or restricted stock units to acquire Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangementsan Approved Stock Plan; (ii) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard equity awards to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard equity awards to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard equity awards to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (nor is any provision of any such Convertible Securitiesi) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard equity awards to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any BuyerPurchaser; (iii) the issuance Shares; (iv) securities issued pursuant to acquisitions approved by a majority of securities to employeesthe disinterested directors of the Company, directors and other third parties under an Approved Share Plan; provided that provisions such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the Restricted Period, and provided that any such Approved Share Plan that were in effect on the date immediately prior issuance shall only be to a Person (or to the date equityholders of this Agreementa Person) which is, remain itself or through its subsidiaries, an operating company or an owner of an asset and shall provide to the Company additional benefits in effect without amendment addition to the investment of funds, but shall not include a transaction in any manner that adversely affects any Buyer, including any amendment to increase which the number of shares issuable thereunder, except Company is issuing securities primarily for the proposal included purpose of raising capital or to an entity whose primary business is investing in securities; and (v) shares of Common Stock issued on conversion of outstanding promissory notes held by A▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (or an affiliate), which was approved by stockholders on July 9, 2025, to the extent necessary to obtain approval of the Italian government of the Company’s preliminary proxy statement filed with acquisition of interest in Tekne, as described in the SEC on December Registration Statement, and provided that such shares are “restricted securities” (as defined in Rule 144) and include restrictive legends that prevent the removal of the restrictions during the Restricted Period.
(b) From the date hereof until the earlier of six months from the date hereof or the date as of which the Purchasers no longer hold Securities, the Company shall be prohibited from entering into or agreeing to enter into a Variable Rate Transaction. Notwithstanding the foregoing, during such time after the Restricted Period, this Section 4.12(b) shall not apply to shares of Common Stock issued pursuant to that certain Standby Equity Purchase Agreement, dated as of May 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan2025, as amended, by and between the Company and YA II PN, LTD. (ivthe “SEPA”); provided, however, that shares shall not be issued pursuant to this Section 4(b) unless the Common Stock trades on the Trading Market at a price equal to or greater than 125% of the Per Share Purchase Price for at least ten (10) consecutive Trading Days, in which case the maximum number of shares that may be issued and sold on the applicable Trading Day shall not exceed 5% of the daily trading volume of the Common Stock on the Trading Market on such Trading Day; provided, further that if the Common Stock trades on the Trading Market at a price equal to or greater than 150% of the Per Share Purchase Price for at least ten (10) consecutive Trading Days, the maximum number of shares that may be issued and sold on the applicable Trading Day shall increase to 10% of the daily trading volume of the Common Stock on the Trading Market on such Trading Day. “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 Convertible Notesinitial 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 or an “at the Conversion Sharesmarket offering”, whereby the Warrants Company may issue securities at a future determined price, regardless of whether shares pursuant to such agreement have actually been issued and regardless of whether such agreement is subsequently canceled; provided that Exempt Issuances as provided in Section 4.12(a) above shall not be considered Variable Rate Transactions. Any Purchaser shall be entitled to obtain injunctive relief against the Warrant SharesCompany to preclude any such issuance, which remedy shall be in addition to any right to collect damages.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Nuburu, Inc.), Securities Purchase Agreement (Nuburu, Inc.)
Additional Issuance of Securities. The Company agrees that during for the period commencing on the date hereof and ending on the date immediately following the 90th calendar day after the Closing Date (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly indirectly:
(i) file a registration statement under the 1933 Act relating to securities that are not the Underlying Securities (other than a registration statement on Form S-8 or such supplements or amendments to registration statements that are outstanding and have been declared effective by the SEC as of the date hereof (solely to the extent necessary to keep such registration statements effective and available and not with respect to any Subsequent Placement));
(ii) amend or modify (whether by an amendment, waiver, exchange of securities, or otherwise) any of the Company’s warrants to purchase Common Shares that are outstanding as of the date hereof; or
(iii) issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act)), any Convertible Securities, debt Securities (with or related to equityas defined below), any debt, any preferred stock shares or any purchase rightsrights (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) (is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(l)(iii) shall not apply in respect of the following: issuance of (iA) issuances Common Shares or standard options to purchase Common Shares to directors, officers or employees of the Company in their capacity as such pursuant to acquisitionsan Approved Shares Plan (as defined below), joint venturesprovided that (x) all such issuances (taking into account the Common Shares issuable upon exercise of such options) after the date hereof pursuant to this clause (A) do not, license arrangementsin the aggregate, leasing arrangements exceed more than 10% of the Common Shares issued and similar transaction arrangementsoutstanding immediately prior to the date hereof and (y) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiB) an issuance of shares of Common Stock Shares issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Shares issued pursuant to an Approved Shares Plan that are covered by clause (A) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard options to purchase Common Shares issued pursuant to an Approved Shares Plan that are covered by clause (A) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Shares issued pursuant to an Approved Shares Plan that are covered by clause (nor is any provision of any such Convertible SecuritiesA) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Shares issued pursuant to an Approved Shares Plan that are covered by clause (A) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; and (iiiC) the issuance Securities. (Each of securities the foregoing in clauses (A) through (C), collectively the “Excluded Securities”). “Approved Shares Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior or subsequent to the date of this Agreementhereof pursuant to which Common Shares and standard options to purchase Common Shares may be issued to any employee, remain officer or director for services provided to the Company in effect without amendment in their capacity as such. “Convertible Securities” means any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance share capital or other security of the Convertible NotesCompany or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the Conversion holder thereof to acquire, any share capital or other security of the Company (including, without limitation, Common Shares, the Warrants and the Warrant Shares) or any of its Subsidiaries.
Appears in 1 contract
Sources: Securities Purchase Agreement (Dogness (International) Corp)
Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the first anniversary of the Applicable Date (provided that such period shall be extended by the number of days during such period and any extension thereof contemplated by this proviso on which the Registration Statement is not effective or any prospectus contained therein is not available for use) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Securities Act), any Convertible Securitiesconvertible securities, debt (with or related to equity)any debt, any preferred stock or any purchase rightsrights (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) (is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(l) shall not apply in respect of the following: issuance of:
(iA) issuances shares of Common Stock or standard options to purchase Common Stock to directors, officers, consultants or employees of the Company in their capacity as such pursuant to acquisitionsan Approved Share Plan (as defined below), joint venturesprovided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (A) do not, license arrangementsin the aggregate, leasing arrangements exceed more than twelve (12) million shares of Common Stock (as adjusted for stock splits, stock combinations and other similar transaction arrangements; transactions occurring after the date of this Agreement) and (ii2) an issuance the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Purchasers;
(B) shares of Common Stock issued upon the conversion or exercise of of, or otherwise on account of, Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) is not lowered, none of such Convertible Securities are (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase, or which results in an increase in, the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; of the Purchasers;
(iiiC) the issuance Conversion Shares,
(D) the Warrants;
(E) the Warrant Shares;
(F) shares of securities Common Stock to employeesconsultants, directors and vendors or other third parties under an Approved Share Plan; in satisfaction of any debt, payable or other obligation of the Company to such party, provided that provisions of all such Approved Share Plan that were in effect on issuances after the date immediately prior hereof pursuant to this clause do not, in the aggregate, exceed more than two (2) million shares of Common Stock (as adjusted for stock splits, stock combinations and other similar transactions occurring after the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and ) (iv) the issuance each of the Convertible Notesforegoing in clauses (A) through (F), collectively the Conversion Shares, the Warrants and the Warrant Shares“Excluded Securities”).
Appears in 1 contract
Sources: Securities Purchase Agreement (True Drinks Holdings, Inc.)
Additional Issuance of Securities. The Company agrees that during for the period commencing on the date hereof and ending on the 30th calendar day after the Closing Date (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), 1▇▇▇ ▇▇▇) or any Convertible Securities, debt Securities (with or related to equity), any preferred stock or any purchase rights) (“Additional Issuance”as defined in the July SPA). Notwithstanding the foregoing, this Section 4(j4(b)(xix) shall not apply in respect of the following: issuance of (i) issuances shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to acquisitionsan Approved Stock Plan (as defined in the July SPA), joint venturesprovided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, license arrangementsin the aggregate, leasing arrangements exceed more than 10% of the Common Stock issued and similar transaction arrangementsoutstanding immediately prior to the date hereof and (2) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects the Holder; (ii) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (nor is any provision of any such Convertible Securitiesi) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerthe Holder; (iii) the issuance of securities to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included Conversion Shares (as defined in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amendedJuly SPA), and (iv) the issuance Warrant Shares (as defined in the July SPA), the August Warrant Shares (as defined in the August WEA), the September Warrant Shares (as defined in the September WEA) and the November Warrant Shares (each of the Convertible Notesforegoing in clauses (i) through (iv), collectively the Conversion Shares“Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Warrants and the Warrant SharesCompany in their capacity as such.
Appears in 1 contract
Additional Issuance of Securities. So long as any Investor holds at least 150 Preferred Shares (or has the right to acquire at least 150 Preferred Shares pursuant to the Preferred Warrant of such Investor) (the “Minimum Ownership Condition”), the Company will not, without the prior written consent of the Required Holders, issue any Preferred Shares (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Certificate of Designations or the Common Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 60th calendar day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible SecuritiesSecurities (as defined below), debt (with or related to equity)any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the following: issuance of (i) issuances shares of Common Stock or options to purchase Common Stock to directors, officers, consultants or employees of the Company in their capacity as such pursuant to acquisitionsan Approved Stock Plan (as defined below), joint venturesprovided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, license arrangementsin the aggregate, leasing arrangements exceed more than 15% of the Common Stock issued and similar transaction arrangementsoutstanding immediately prior to the date hereof and (2) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) an issuance of Convertible Securities and/or shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect the Insider Financing (as of the date hereof; defined below), provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (nor is any provision of any such Convertible Securitiesi) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iii) the Conversion Shares; provided, that the terms of the Certificate of Designations are not amended, modified or changed on or after the date hereof, (iv) the Warrant Preferred Shares; provided, that the terms of the Preferred Warrant are not amended, modified or changed on or after the Closing Date, (v) the Warrant Common Shares; provided, that the terms of the Common Warrants are not amended, modified or changed on or after the Closing Date, (iv) shares of Common Stock and/or Convertible Securities issued either (x) to the Placement Agent in connection with the issuance of the Securities or (y) to the Placement Agent (and/or other underwriters or placement agents) in connection with a Subsequent Placement; provided, that (I) such shares of Common Stock and/or Convertible Securities, as applicable, are issued as actual reasonable compensation for services rendered by such Placement Agent (and/or other underwriters or placement agents) in connection therewith and (II) if such Common Stock and/or Convertible Securities, as applicable, are issued pursuant to a registration statement (or otherwise are unrestricted securities or available to employeesbe resold pursuant to and effective registration statement), directors the applicable shares of Common Stock and/or Convertible Securities, as applicable, shall be subject to a lock-up agreement, in form and substance reasonably satisfactory to the Required Holders, restricting the resale of such shares of Common Stock and/or Convertible Securities, as applicable, for a period of at least 120 days after the date of issuance thereof and (v) shares of Common Stock and Common Stock issued upon the conversion or exercise of Convertible Securities (other third parties under than options to purchase Common Stock issued pursuant to an Approved Share Plan; provided that provisions of such Approved Share Stock Plan that were in effect on the date immediately prior to or after the date of this AgreementAgreement that are covered by clause (i) above) issued or issuable pursuant to strategic alliances, remain strategic mergers and acquisitions, strategic partnerships, strategic license agreements and other similar transactions, provided that (I) the primary purpose of such issuance is not to raise capital, (II) the purchaser or acquirer of such shares of Common Stock and/or Convertible Securities in effect without amendment such issuance solely consists of the actual participants in any manner that adversely affects any Buyersuch strategic transaction or the stockholders, including any amendment to increase partners, members or Affiliates of the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amendedsuch participants, and (ivIII) to the issuance extent there are multiple participants in such transaction, the number or amount (as the case may be) of such shares of Common Stock and/or Convertible Securities issued to such Person by the Company in such transaction shall not be disproportionate to such Person’s actual participation in such strategic transaction (each of the foregoing in clauses (i) through (v), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan or other agreement which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and options to purchase Common Stock may be issued to any employee, consultant, officer or director for services provided to the Company in their capacity as such. “Convertible NotesSecurities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the Conversion Sharesholder thereof to acquire, any capital stock or other security of the Warrants and the Warrant SharesCompany (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Preferred Shares, Preferred Warrants or Common Warrants, the Company will not, without the prior written consent of the Required Holders, issue any Preferred Shares (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Certificate of Designations or the Common Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 60th calendar day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible SecuritiesSecurities (as defined below), debt (with or related to equity)any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the following: issuance of (i) issuances shares of Common Stock or options to purchase Common Stock or other awards convertible, exercisable for or exchangeable for shares of Common Stock to directors, officers, consultants or employees of the Company in their capacity as such pursuant to acquisitionsan Approved Stock Plan (as defined below), joint venturesprovided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, license arrangementsin the aggregate, leasing arrangements exceed more than 12% of the Common Stock issued and similar transaction arrangementsoutstanding immediately prior to the date hereof and (2) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) an issuance of Convertible Securities and/or shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than options to purchase Common Stock or other awards convertible, exercisable for or exchangeable for shares of Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than options to purchase Common Stock or other awards convertible, exercisable for or exchangeable for shares of Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than options to purchase Common Stock or other awards convertible, exercisable for or exchangeable for shares of Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (nor is any provision of any such Convertible Securitiesi) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than options to purchase Common Stock or other awards convertible, exercisable for or exchangeable for shares of Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iii) the Conversion Shares; provided, that the terms of the Certificate of Designations are not amended, modified or changed on or after the date hereof, (iv) the Warrant Preferred Shares; provided, that the terms of the Preferred Warrant are not amended, modified or changed on or after the Closing Date, (v) the Warrant Common Shares; provided, that the terms of the Common Warrants are not amended, modified or changed on or after the Closing Date, (vi) shares of Common Stock and/or Convertible Securities either (x) issued to the Placement Agent in connection with the issuance of securities the Securities or (y) issued to employeesthe Placement Agent in connection with a Subsequent Placement; provided, directors that (I) such shares of Common Stock and/or Convertible Securities, as applicable, are issued as actual reasonable compensation for services rendered by the Placement Agent in connection therewith and (II) the applicable shares of Common Stock and/or Convertible Securities, as applicable, shall be subject to a lock-up agreement, in form and substance reasonably satisfactory to the Required Holders, restricting the resale of such shares of Common Stock and/or Convertible Securities, as applicable, for a period of at least 120 days after the date of issuance thereof; and (vii) shares of Common Stock and Common Stock issued upon the conversion or exercise of Convertible Securities (other third parties under than options to purchase Common Stock or other awards convertible, exercisable for or exchangeable for shares of Common Stock issued pursuant to an Approved Share Plan; provided that provisions of such Approved Share Stock Plan that were in effect on the date immediately prior to or after the date of this AgreementAgreement that are covered by clause (i) above) issued or issuable pursuant to strategic alliances, remain strategic mergers and acquisitions, strategic partnerships, strategic license agreements and other similar transactions, provided that (I) the primary purpose of such issuance is not to raise capital, (II) the purchaser or acquirer of such shares of Common Stock and/or Convertible Securities in effect without amendment such issuance solely consists of the actual participants in any manner that adversely affects any Buyersuch strategic transaction or the stockholders, including any amendment to increase partners, members or Affiliates of the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amendedsuch participants, and (ivIII) to the issuance extent there are multiple participants in such transaction, the number or amount (as the case may be) of such shares of Common Stock and/or Convertible Securities issued to such Person by the Company in such transaction shall not be disproportionate to such Person’s actual participation in such strategic transaction (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan or other agreement which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and options to purchase Common Stock or other awards convertible, exercisable for or exchangeable for shares of Common Stock may be issued to any employee, consultant, officer or director for services provided to the Company and/or a Subsidiary in their capacity as such. “Convertible NotesSecurities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the Conversion Sharesholder thereof to acquire, any capital stock or other security of the Warrants and the Warrant SharesCompany (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Additional Issuance of Securities. The Company agrees that during for the period commencing on the date hereof and ending on the date immediately following the sixtieth (60th) day after the date hereof (the “Restricted Period”), unless otherwise consented to in writing by Crede, neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity Common Stock or any security or any debt or other instrument convertible or exchangeable or exercisable into Common Stock or which constitutes (or would constitute but for lack of a fixed exercise or conversion or similar price or if it were not solely cash settled) a “derivative security” (as defined under the rules and regulations under Section 16 of the ▇▇▇▇ ▇▇▇) or otherwise an equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), ▇▇▇▇ ▇▇▇) or which does or would otherwise constitute any Option or Convertible Securities, debt Security (with or related to equity), any preferred stock or any purchase rightsas defined in the Warrants) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, the immediately preceding sentence in this Section 4(j4(i) shall not apply in respect of the following: (i) issuances pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an issuance of (A) shares of Common Stock issued or standard options to purchase Common Stock or other standard equity linked securities (e.g., stock appreciation rights) to directors, officers, employees or consultants of the Company in their capacity as such pursuant to an Approved Share Plan (as defined below); provided that (1) all such issuances that are exercisable or vest during the Restricted Period (taking into account the shares of Common Stock issuable upon the conversion or exercise of Convertible Securities issued prior such options and equity linked securities that are exercisable or vest during the Restricted Period, but not including shares issuable pursuant to the date hereof Options or Convertible Securities that may be issued pursuant to an agreement in effect outstanding as of the date hereof; provided that definitive terms of such Convertible Securities ) and are issued after the date hereof pursuant to this clause (whether such Convertible Securities have been issued or will be issuedA) have been disclosed do not, in the SEC Documents; andaggregate, provided further that exceed more than 2% of the conversion or exercise shares of Common Stock then outstanding and (as 2) during the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this AgreementRestricted Period, the conversion or exercise price of any such Convertible Securities options is not lowered, none of such Convertible Securities options are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities options are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iiiB) shares of Common Stock issued upon the issuance conversion or exercise of securities to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately Options or Convertible Securities issued prior to the date hereof to the extent issued pursuant to their terms as of this Agreement, remain the date hereof; (C) shares of Common Stock issued as part of the Subordinated Notes Exchange; (D) issuances required to be made in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed compliance with the SEC on December 30, 2024 for preemptive rights provisions of the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and Outstanding Warrants; (ivE) the issuance of Common Shares and the Convertible Notes, the Conversion Shares, the Warrants and Warrants; (F) the Warrant Shares.; (G) issuances of equity to a seller, or in the case of a merger, the shareholders of the target company in such merger, or the officers or employees thereof, in each case in connection with a bona fide merger, business combination transaction or acquisition of stock or assets outside of the ordinary course; (H) a stock split or other subdivision or combination, or a
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders (as defined below), issue any Preferred Shares (other than to the Buyers as contemplated hereby) and the Company shall not (i) issue any other securities that would (x) would cause a breach or default under the Certificate of Designations, the Warrants or the Incremental Warrants or (y) have a price per share (calculated in accordance with Section 8(a) of the Certificate of Designations) less than 150% of the then-current Floor Price (each as defined in the Certificate of Designations) or (ii) reduce the applicable floor price of any existing Convertible Securities. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 90th calendar day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt (with or related to equity)any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the following: issuance of (i) issuances shares of Common Stock or standard options to purchase Common Stock to directors, officers, consultants or employees of the Company in their capacity as such pursuant to acquisitionsan Approved Stock Plan (as defined below), joint venturesprovided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, license arrangementsin the aggregate, leasing arrangements exceed more than 20% of the Common Stock issued and similar transaction arrangementsoutstanding on a fully-diluted basis, giving effect to the exercise or conversion of Convertible Securities, immediately prior to the Closing Date (but including for purposes of such calculation the shares issuable upon conversion of the Preferred Shares initially issued on the Closing Date, assuming the Preferred Shares are the convertible at the Conversion Price (as defined in the Certificate of Designations) in effect on the Closing Date) and (2) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) an issuance of shares of Common Stock issued upon the conversion or exercise exercise, as applicable, of Convertible Securities or Options (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise price issuance price, as applicable, of any such Convertible Securities or Options (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not loweredlowered (except pursuant to automatic adjustments under provisions of such Convertible Securities in effect on the date hereof), none of such Convertible Securities or Options (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (nor is any provision of any such Convertible Securitiesi) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities or Options (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; of the Buyers and (iii) the issuance of securities to employeesConversion Shares, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance Warrant Shares , (v) securities issued pursuant to merger, acquisition or strategic transactions approved by a majority of the Convertible Notesdisinterested directors of the Company, and (vi) securities issued pursuant to an offering registered with the Conversion SharesSEC in which the Financial Advisor acts as the lead underwriter or placement agent (the “Future Public Offering”), and (vi) 118,000 shares of Common Stock to be issued as commitment shares pursuant to a securities purchase agreement.(each of the Warrants foregoing in clauses (i) through (vi), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Warrant SharesCompany in their capacity as such.
Appears in 1 contract
Sources: Securities Purchase Agreement (Nature's Miracle Holding Inc.)
Additional Issuance of Securities. The Company agrees that during the Restricted Period, the Company shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt (with or related to equity), any preferred stock or any purchase rights) (“Additional Issuance”). Notwithstanding the foregoing, this Section 4(j) shall not apply in respect of the following: (i) issuances pursuant to acquisitions, joint ventures, license arrangements, services, leasing arrangements and similar transaction arrangements; (ii) an issuance of shares of Common Stock issued pursuant to agreements existing as of the date of this Agreement or upon the conversion or exercise of Convertible Securities issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; provided that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; (iii) the issuance of securities compensatory equity awards to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, Agreement remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and ; (iv) the issuance of shares of Common Stock (or pre-funded warrants) for an aggregate purchase price not to exceed $800,000, provided that the following conditions are met:
(A) the Company has first offered the sale of such Common Stock (or pre-funded warrants) to each Buyer and no Buyer has accepted such offer within ten (10) days of such initial offer and the sale is conducted under substantially similar terms as what was offered to the Buyers, (B) the Common Stock is issued pursuant to an exemption from registration under the 1933 Act, and (C) the Company shall not register resales of such shares of Common Stock until it has obtained Stockholder Approval and all Registrable Securities are registered pursuant to the terms the Registration Rights Agreement; and (v) the issuance of the Convertible Notes, Notes and the Conversion Shares, the Warrants and the Warrant Shares.
Appears in 1 contract
Additional Issuance of Securities. The Company agrees that during the Restricted Period, the Company shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt (with or related to equity), any preferred stock or any purchase rights) (“Additional Issuance”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the issuance of the following: (i) issuances Ordinary Shares or standard options to purchase Ordinary Shares to directors (who are also employees of the Company), officers, employees or consultants of the Company pursuant to acquisitionsan Approved Share Plan (as defined below), joint venturesprovided that the exercise price of any such options is not lowered, license arrangements, leasing arrangements none of such options are amended to increase the number of shares issuable thereunder and similar transaction arrangementsnone of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects Buyer; (ii) an issuance of shares of Common Stock Ordinary Shares issued upon the conversion or exercise of Convertible Securities issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; provided that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; (iii) the issuance of securities to employees, directors and other third parties under an Approved Share PlanConvertible Notes; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, ; (v) the Warrants Warrants; and (vi) the Warrant Shares. The Company further agrees that, without prior consent of the Buyer, until the earlier of (A) twelve (12) months after the Second Closing or (b) the date on which Buyer has sold or disposed of all Securities, the Company will not issue any floating conversion rate or variable priced securities convertible into Ordinary Shares.
Appears in 1 contract
Sources: Securities Purchase Agreement (Borqs Technologies, Inc.)
Additional Issuance of Securities. The Company agrees that during for the period commencing on the date hereof and ending on the date immediately following the forty-five (45) Trading Day anniversary of the Applicable Date (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of or any option or right to purchase or other disposition of) any of their respective equity security or equity equivalent securities, including, without limitation, any equity-linked debt, preferred stock, rights, options, warrants or related security other instrument that is at any time and under any circumstances convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, capital stock and other securities of the Company (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under securities of the 1933 Act)Company or any Subsidiary which entitle the holder thereof to acquire Common Stock at any time, including without limitation, any Convertible Securitiesdebt, debt preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock or other securities that entitle the holder to receive, directly or indirectly, Common Stock) (collectively with or related to equity), any preferred such capital stock or any purchase rightsother securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the following: issuance of (iA) issuances shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to acquisitionsan Approved Share Plan, joint venturesprovided that all such issuances after the date hereof pursuant to this clause (A) do not, license arrangementsin the aggregate, leasing arrangements exceed more than 5% of the Common Stock issued and similar transaction arrangements; outstanding immediately prior to the date hereof, (iiB) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities Equivalents issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms of such Convertible Securities (whether such Convertible Securities Equivalents have not been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to amended since the date of this Agreement, the conversion or exercise price of any such Convertible Securities is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) Agreement to increase the number of shares issuable thereunder and none of or to lower the exercise or conversion price thereof or otherwise materially change the terms or conditions of any such Convertible Securities are otherwise materially changed or waived (whether by the Company or the holder thereof) thereof in any manner that adversely affects any Buyer; of the Buyers, (iiiC) shares of Common Stock and standard warrants to purchase Common Stock as equity kickers in connection with bona fide lending transactions involving only non-convertible debt, the primary purpose of which is not to raise capital, and which are approved in good faith by the Company’s Board of Directors, provided that all such issuances after the date hereof pursuant to this clause (C) do not, in the aggregate, exceed 961,722 shares of Common Stock (including, without limitation, shares of Common Stock issuable upon exercise of such standard warrants) (adjusted for stock splits, combinations and the like), (D) the issuance of securities to employeesWarrant Shares, directors and other third parties under an Approved Share Plan; (E) the Placement Agent Warrant (as defined below), provided that provisions such Placement Agent Warrant has not been amended since the Closing Date to increase the number of such Approved Share Plan that were in effect on shares issuable thereunder or to lower the date immediately prior to exercise price thereof or otherwise materially change the date of this Agreement, remain in effect without amendment terms or conditions thereof in any manner that adversely affects any Buyer, including any amendment to increase of the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amendedBuyers, and (ivF) the issuance Placement Agent Warrant Shares (as defined below) (each of the Convertible Notesforegoing in clauses (A) through (F), collectively the Conversion Shares, the Warrants and the Warrant Shares.“Excluded Securities”). “
Appears in 1 contract
Additional Issuance of Securities. The Company agrees that, for the period commencing on the date hereof and ending on the earlier to occur of (i) the date immediately following the first anniversary of the Initial Closing Date; or (ii) the date that during the arithmetic average of the closing sale price of the Common Stock is at least $0.30 for ten (10) consecutive trading days (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Securities Act), any Convertible Securitiesconvertible securities, debt (with or related to equity)any debt, any preferred stock or any purchase rightsrights (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) (is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(c) shall not apply in respect of the following: issuance of:
(i) issuances shares of Common Stock or standard options to purchase Common Stock to directors, officers, consultants or employees of the Company in their capacity as such pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; an Approved Share Plan (as defined below);
(ii) an issuance of shares of Common Stock issued upon the conversion or exercise of of, or otherwise on account of, Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) is not lowered, none of such Convertible Securities are (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase, or which results in an increase in, the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; of the Purchasers;
(iii) the issuance of securities to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and Conversion Shares,
(iv) the issuance Warrants; and
(v) the Warrant Shares (each of the Convertible Notesforegoing in clauses (i) through (v), collectively the Conversion Shares, the Warrants and the Warrant Shares“Excluded Securities”).
Appears in 1 contract
Sources: Securities Purchase Agreement (True Drinks Holdings, Inc.)
Additional Issuance of Securities. The Company agrees that during for the period commencing on the date hereof and ending on March 29, 2015 (the “Restricted Period”), unless otherwise consented to in writing by Buyer, neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity Common Stock or any security or any debt or other instrument convertible or exchangeable or exercisable into Common Stock or which constitutes (or would constitute but for lack of a fixed exercise or conversion or similar price or if it were not solely cash settled) a “derivative security” (as defined under the rules and regulations under Section 16 of the 1▇▇▇ ▇▇▇) or otherwise an equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), 1▇▇▇ ▇▇▇) or which does or would otherwise constitute any Option or Convertible Securities, debt Security (with or related to equity), any preferred stock or any purchase rightsas defined in the Warrants) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, the immediately preceding sentence in this Section 4(j4(i) shall not apply in respect of the following: (i) issuances pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an issuance of (A) shares of Common Stock issued or standard options to purchase Common Stock or other standard equity linked securities (e.g., stock appreciation rights) to directors, officers, employees or consultants of the Company in their capacity as such pursuant to an Approved Share Plan (as defined below); provided that (1) all such issuances that are exercisable or vest during the Restricted Period (taking into account the shares of Common Stock issuable upon the conversion or exercise of Convertible Securities issued prior such options and equity linked securities that are exercisable or vest during the Restricted Period, but not including shares issuable pursuant to the date hereof Options or Convertible Securities that may be issued pursuant to an agreement in effect outstanding as of the date hereof; ) and are issued after the date hereof pursuant to this clause (A) do not, in the aggregate, exceed more than (i) 1,000,000 shares of Common Stock or standard options to purchase Common Stock or other standard equity linked securities (e.g., stock appreciation rights) to directors, officers or employees and (ii) 1,000,000 shares of Common Stock or standard options to purchase Common Stock or other standard equity linked securities (e.g., stock appreciation rights) to any person (provided that definitive terms of such Convertible Securities no more than 250,000 shall be issued as compensation for investor relation services); (whether such Convertible Securities have been issued or will be issued2) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities options is not lowered, none of such Convertible Securities options are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities options are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; the Buyer and (iii3) the issuance price of securities Common Stock or the exercise price of any such options is not lower than the higher of (i) $0.30 or (ii) the closing price of the Company’s Common Stock on the OTC Bulletin Board on the trading day prior to employees, directors and other third parties under an Approved Share Plan; provided that provisions the issuance of such Approved Share Plan that were in effect on Common Stock or option; (B) shares of Common Stock issued upon the date immediately conversion or exercise of Options or Convertible Securities issued prior to the date hereof to the extent issued pursuant to their terms as of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and date hereof; (ivC) the issuance of Common Shares and the Convertible Notes, the Conversion Shares, the Warrants and Warrants; (D) the Warrant Shares.; (E) issuances of equity to a seller, or in the case of a merger, the shareholders of the target company in such merger, or the officers or employees thereof, in each case in connection with a bona fide merger, business combination transaction or acquisition of stock or assets outside of the ordinary course; (F) a stock split or other subdivision or combination, or a stock dividend made to all holders of any Company equity on a pro rata basis; or (G) issuances of Common Stock or Convertible Securities in connection with strategic partnerships, joint ventures, licensing, acquisition of assets or technology, or similar arrangements 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 equity holders of a Person)
Appears in 1 contract
Additional Issuance of Securities. The Company agrees that during the Restricted Period, the Company shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt (with or related to equity), any preferred stock or any purchase rights) (“Additional Issuance”). Notwithstanding the foregoing, this Section 4(j) shall not apply in respect of the following: (i) issuances pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; provided that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; (iii) the issuance of securities to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the a proposal to be included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual a special stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Shares.
Appears in 1 contract
Sources: Securities Purchase Agreement (Mullen Automotive Inc.)
Additional Issuance of Securities. The Company agrees that during for the period commencing on the date hereof and ending on the date 90 days after the Closing Date (the “Restricted Period”), neither the Company nor any of its Significant Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Securities Act), any Convertible Securities, debt Securities (with or related to equityas defined below), any preferred stock or any purchase rights) (“Additional Issuance”). Notwithstanding the foregoing, this Section 4(j) shall not apply in respect of the following: issuance of (i) issuances pursuant up to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an issuance of 1,063,514 shares of Common Stock being issued upon the conversion or exercise of Convertible Securities issued prior to on the date hereof to certain accredited investors pursuant to subscription agreements entered into with such accredited investors, (ii) shares of Common Stock issuable as payment of the Origination Fee, (iii) up to 200,000 shares of Common Stock issuable in connection with Permitted LOC Debt (as defined in the Notes), (iv) up to 142,710 shares of Common Stock (or Convertible Securities that may be issued warrants therefor) otherwise issuable in connection with the Closing; (v) shares of Common Stock or options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an agreement equity compensation plan in effect as of the date hereof; of this Agreement, provided that definitive terms (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such Convertible Securities options) after the date hereof and during the Restricted Period pursuant to this clause (whether such Convertible Securities have been issued or will be issuedv) have been disclosed do not, in the SEC Documents; andaggregate, provided further that exceed more than 5% of the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date Common Stock issued and outstanding immediately prior to the date of this Agreement, hereof and (2) the conversion or exercise price of any such Convertible Securities options is not lowered, none of such Convertible Securities options are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities options are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iiivi) shares of Common Stock issued upon the issuance conversion or exercise of securities Convertible Securities (other than options to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately purchase Common Stock issued pursuant to equity compensation plans covered by clause (v) above) issued prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, hereof; and (ivvii) the issuance of the Convertible Notes, the Conversion Shares. “Convertible Securities” means any capital stock or other security of the Company or any of its Significant Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the Warrants and holder thereof to acquire, any capital stock or other security of the Warrant SharesCompany (including, without limitation, Common Stock) or any of its Significant Subsidiaries.
Appears in 1 contract
Additional Issuance of Securities. (i) The Company agrees that during for the period commencing on the date hereof and ending on the date immediately following the thirtieth (30th) calendar day after the Closing Date (the “Restricted Period”), neither the Company shall not nor any of its Subsidiaries shall, directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or register or amend any outstanding registration statements or file any shelf registration statements or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt (with or related to equity), any preferred stock or any purchase rights) (“Additional Issuance”). Notwithstanding the foregoing, this Section 4(j4(j)(i) shall not apply during the Restricted Period in respect of (A) the following: issuance, offer, sale, grant or other disposition of any securities in connection with Project Level Financing, (iB) issuances pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an the issuance of shares of Common Stock issued upon the conversion Stock, Options or exercise of Convertible Securities issued pursuant to existing agreements entered into prior to the date hereof (without giving effect to any amendment thereto made after the date hereof), including issuances pursuant to Options or Convertible Securities that may be issued pursuant outstanding as of the date hereof (without giving effect to an agreement any amendment thereto made after the date hereof) or any Approved Stock Plan as in effect as of the date hereof (without giving effect to any amendment thereto made after the date hereof) or grants or awards made under an Approved Stock Plan; provided however, that definitive terms any offering, issuances or sales of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise securities pursuant to an ATM Agreement (as defined below) or the case may beContinuous Notes Offering (as defined below) shall not fall within this exception, or (C) the issuances of Note Shares. “Project Level Financing” means all debt (including mezzanine and holdco financings and whether secured or unsecured), equity (including equity-linked), mezzanine financing(s) of any such Convertible Security is made solely pursuant kind entered into by Driftwood LNG Holdings LLC or any of its Subsidiaries to the conversion extent that the proceeds of any such financing will be used for the development, construction, financing, ownership, operation or exercise (as maintenance of the case may be) provisions Driftwood LNG Project. An “Approved Stock Plan” means any security-based compensation plan which has been approved by the Board of such Convertible Security that were in effect (or disclosed in Directors of the SEC Documents) on the date immediately Company prior to the date of this Agreementhereof, the conversion or exercise price of any such Convertible Securities security-based compensation plan which is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether approved by the Company Board of Directors or the holder thereof) to increase compensation committee thereof and the number of shares issuable thereunder and none stockholders of the terms Company after the date hereof, pursuant to which shares of Common Stock, options to purchase Common Stock and other incentive equity awards may be issued to any employee, officer, consultant or conditions director for services provided to the Company in their capacity as such, and not for the purpose of raising capital, pursuant to any such Convertible Securities are otherwise materially changed award agreement, consulting agreement, advisory agreement or waived (whether independent contractor agreement approved by the Company Board of Directors or the holder compensation committee thereof) in any manner that adversely affects any Buyer; (iii) the issuance of securities to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Shares.
Appears in 1 contract
Sources: Securities Purchase Agreement (Tellurian Inc. /De/)
Additional Issuance of Securities. So long as the Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Buyer, issue any Warrants (other than to the Buyer as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Warrants. The Company agrees that during for each period commencing on a Closing Date hereunder, through, and including, the tenth (10th) Trading Day immediately following such Closing Date (each, a “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly indirectly:
(i) file a registration statement under the Securities Act relating to securities that are not the Registrable Securities (other than a registration statement on Form S-4, Form S-8 or such supplements or amendments to registration statements that are outstanding and have been declared effective by the SEC as of the date hereof (including the Registration Statement) (solely to the extent necessary to keep such registration statements effective and available and not with respect to any Subsequent Placement)); or
(ii) issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Securities Act)), any Convertible Securities, debt (with or related to equity)any debt, any preferred stock or any purchase rightsrights (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) (is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j) shall not apply in respect of the following: issuance of Excluded Securities. “Excluded Securities” means (i) issuances shares of Common Stock or options to purchase Common Stock issued to directors, officers or employees of the Company for services rendered to the Company in their capacity as such pursuant to acquisitionsan Approved Stock Plan, joint venturesprovided that (A) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date of this Agreement pursuant to this clause (i) do not, license arrangementsin the aggregate, leasing arrangements exceed more than 5% of the Common Stock issued and similar transaction arrangementsoutstanding immediately prior to the date thereof and (B) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any Buyer; (ii) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; this Agreement, provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (nor is any provision of any such Convertible Securitiesi) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iii) the issuance shares of securities Common Stock issuable pursuant to employeesthe terms of the Notes, including, without limitation, upon conversion or otherwise; (iv) any shares of Common Stock issued or issuable in connection with any acquisitions (whether by merger, consolidation, purchase of equity, purchase of assets, reorganization or otherwise), mergers, consolidations, or reorganizations approved by a majority of the disinterested directors and other third parties under an Approved Share Plan; of the Company, provided that provisions any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business complementary with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith; and (v) up to 174,358 shares of Common Stock currently held on treasury. “Approved Share Plan that were in effect on Stock Plan” means any employee benefit plan which has been approved by the date immediately board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of this AgreementCommon Stock and standard options to purchase Common Stock may be issued to any employee, remain officer or director for services provided to the Company in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, their capacity as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Shares.such.
Appears in 1 contract
Sources: Securities Purchase Agreement (New Era Helium Inc.)
Additional Issuance of Securities. The Company agrees that during for the period commencing on the date hereof and ending on the date immediately following the sixty (60) day anniversary of the Effective Date (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Securities Act), any Convertible SecuritiesSecurities (as defined below), debt (with or related to equity)any debt, any preferred stock or any purchase rightsrights (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) (is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j) 4.14 shall not apply in respect of the following: (i) issuances pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an issuance of (A) shares of Common Stock issued or standard options to purchase Common Stock (including the issuance of Common Stock upon the conversion or exercise of Convertible Securities issued prior such options) to directors, officers or employees of the date hereof or Convertible Securities that may be issued Company in their capacity as such pursuant to an agreement in effect Approved Share Plan (as of the date hereof; defined below), provided that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities options is not lowered, none of such Convertible Securities options are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities options are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Purchasers; (iiiB) shares of Common Stock issued upon the issuance conversion or exercise of securities Convertible Securities (other than standard options to employees, directors and other third parties under purchase Common Stock issued pursuant to an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Shares.are covered
Appears in 1 contract
Sources: Securities Purchase Agreement (ImmunoCellular Therapeutics, Ltd.)
Additional Issuance of Securities. The Except as disclosed in Section 4(g) of the Disclosure Schedule and as contemplated by the Transaction Documents, the Company agrees that during for the period commencing on the date hereof and ending on the date immediately following the one-hundred and eightieth (180th) day after the date hereof (the “Restricted Period”), unless otherwise consented to in writing by each of the Large Investors, neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity Common Stock or any security or any debt or other instrument convertible or exchangeable or exercisable into Common Stock or which constitutes (or would constitute but for lack of a fixed exercise or conversion or similar price or if it were not solely cash settled) a “derivative security” (as defined under the rules and regulations under Section 16 of the 1▇▇▇ ▇▇▇) or otherwise an equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), 1▇▇▇ ▇▇▇) or which does or would otherwise constitute any Option or Convertible Securities, debt Security (with or related to equity), any preferred stock or any purchase rightsas defined in the Warrants) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, the immediately preceding sentence in this Section 4(j) shall not apply in respect of the following: issuance of
(iA) issuances pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an issuance of shares of Common Stock issued or standard options to purchase Common Stock or other standard equity linked securities (e.g., stock appreciation rights) to directors, officers, employees or consultants of the Company in their capacity as such pursuant to an Approved Share Plan (as defined below); provided that (1) all such issuances that are exercisable or vest during the Restricted Period (taking into account the shares of Common Stock issuable upon the conversion or exercise of Convertible Securities issued prior such options and equity linked securities that are exercisable or vest during the Restricted Period, but not including shares issuable pursuant to the date hereof Options or Convertible Securities that may be issued pursuant to an agreement in effect outstanding as of the date hereof; provided that definitive terms of such Convertible Securities ) and are issued after the date hereof pursuant to this clause (whether such Convertible Securities have been issued or will be issuedA) have been disclosed do not, in the SEC Documentsaggregate, exceed more than 2,230,798 shares of Common Stock or standard options to purchase Common Stock or other standard equity linked securities (e.g., stock appreciation rights) to directors, officers or employees; and, provided further that (2) the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities options is not lowered, none of such Convertible Securities options are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities options are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; of the Buyers and (iii3) the issuance price of securities Common Stock or the exercise price of any such options is not lower than the higher of (i) $0.60 or (ii) the closing price of the Company’s Common Stock on the Principal Market on the trading day prior to employees, directors and other third parties under an Approved Share Plan; provided that provisions the issuance of such Approved Share Plan that were in effect on Common Stock or option;
(B) shares of Common Stock issued upon the date immediately conversion or exercise of Options or Convertible Securities issued prior to the date hereof to the extent issued pursuant to their terms as of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and date hereof;
(ivC) the issuance of the Convertible Notes, the Conversion Shares, Series B Shares and the Warrants to the extent issued pursuant to the terms contemplated hereby;
(D) the Underlying Series B Shares and the Warrant SharesShares to the extent issued pursuant to the terms set forth in the Series B Shares and Warrants contemplated by this Agreement as of the date hereof;
(E) issuances of equity to a seller, or in the case of a merger, the shareholders of the target company in such merger, or the officers or employees thereof, in each case in connection with a bona fide merger, business combination transaction or acquisition of stock or assets outside of the ordinary course;
(F) a stock split or other subdivision or combination, or a stock dividend made to all holders of any Company equity on a pro rata basis; or
(G) issuances of Common Stock or Convertible Securities in connection with strategic partnerships, joint ventures, licensing, acquisition of assets or technology, or similar arrangements 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 equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities (each of the foregoing in clauses (A) through (G), collectively the “Excluded Securities”).
Appears in 1 contract
Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the twenty (20) Trading Day anniversary of the Initial Closing Date (provided that such period shall be extended by the number of Trading Days during such period and any extension thereof contemplated by this proviso on which the Registration Statement is not effective or any prospectus contained therein is not available for use) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt (with or related to equity), any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j) shall not apply in respect of the following: issuance of (i) issuances shares of Common Stock or standard options to purchase Common Stock to directors, officers, employees or consultants of the Company or any of its Subsidiaries in their capacity as such pursuant to acquisitionsan Approved Share Plan (as defined below) (it being expressly understood and agreed that lawyers, joint ventureslaw firms, license arrangementsaccountants, leasing arrangements accounting firms and other similar transaction arrangementsprofessional advisors and professional advisory firms are not consultants), provided that (A) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 500,000 shares of Common Stock (adjusted for stock splits, stock combinations and other similar transactions) and (B) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; provided that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (nor is any provision of any such Convertible Securitiesi) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iii) Common Shares issued pursuant to a bona fide firm commitment underwritten public offering with a nationally recognized underwriter that generates gross proceeds to the Company in excess of $35,000,000 (but expressly excluding “at-the-market offerings” (as defined in Rule 415(a)(4) under the 1▇▇▇ ▇▇▇) and “equity lines of credit”); (iv) Common Shares issued in connection with strategic alliances, strategic mergers and acquisitions and strategic partnerships, provided that (A) the primary purpose of such issuance is not to raise capital as determined in good faith by the Buyers, (B) the purchaser or acquirer of such Common Shares in such issuance solely consists of either (1) the actual participants in such strategic alliance or strategic partnership, (2) the actual owners of such assets or securities acquired in such merger or acquisition or (3) the shareholders, partners or members of the foregoing Persons, (C) the number or amount (as the case may be) of such Common Shares issued to such Person by the Company shall not be disproportionate to such Person’s actual participation in such strategic alliance or strategic partnership or ownership of such assets or securities to employeesbe acquired by the Company (as applicable) and (D) all such issuances of Common Shares after the date hereof pursuant to this clause (iv) do not, directors in the aggregate, exceed more than 2,000,000 Common Shares (adjusted for share splits, share combinations and other third parties under an Approved Share Plansimilar transactions); (v) standard warrants to purchase Common Shares and the Common Shares issuable upon exercise of such warrants issued solely to placement agents solely as compensation for services rendered to the Company in their capacity as such in connection with a Subsequent Placement, provided that provisions (A) all such issuances (taking into account the Common Shares issuable upon exercise of such Approved Share Plan that were in effect on warrants) after the date immediately prior hereof pursuant to this clause (i) do not, in the date aggregate, exceed more than 2,000,000 Common Shares (adjusted for share splits, share combinations and other similar transactions), (B) the exercise price of this Agreementany such warrants is not lower than the Exercise Price (as defined in the Warrants) and (C) the exercise price of any such warrants is not lowered, remain in effect without amendment none of such warrants are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such warrants are otherwise materially changed in any manner that adversely affects any Buyer, including any amendment to increase of the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and Buyers; (ivvi) the issuance of the Convertible Notes, the Conversion Common Shares, ; (vii) the Warrants and (viii) the Warrant SharesShares (each of the foregoing in clauses (i) through (viii), collectively the “Excluded Securities”). “Approved Share Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer, director or consultant for services provided to the Company or any of its Subsidiaries in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Sources: Securities Purchase Agreement (Sinocoking Coal & Coke Chemical Industries, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders issue any other securities that would cause a breach or default under the Warrants. The Company agrees that during for the period commencing on the date hereof and ending on the date immediately following the 90th calendar day after the Closing Date (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly indirectly:
(i) file a registration statement under the 1933 Act relating to securities that are not the Underlying Securities (other than a registration statement on Form S-8 or such supplements or amendments to registration statements that are outstanding and have been declared effective by the SEC as of the date hereof (solely to the extent necessary to keep such registration statements effective and available and not with respect to any Subsequent Placement));
(ii) amend or modify (whether by an amendment, waiver, exchange of securities, or otherwise) any of the Company’s warrants to purchase Ordinary Shares that are outstanding as of the date hereof, except adjustment of exercise prices of such outstanding warrants pursuant to their respective terms as of the date hereof; or
(iii) issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act)), any Convertible Securities, debt Securities (with or related to equityas defined below), any debt, any preferred stock shares or any purchase rightsrights (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) (is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, Subsequent Placement within the meaning of this Section 4(j) Agreement shall not apply in respect include the issuance of (A) Ordinary Shares or standard options to purchase Ordinary Shares to directors, officers or employees of the following: (i) issuances Company in their capacity as such pursuant to acquisitionsan Approved Shares Plan (as defined below), joint venturesprovided that (x) all such issuances (taking into account the Ordinary Shares issuable upon exercise of such options) after the date hereof pursuant to this clause (A) do not, license arrangementsin the aggregate, leasing arrangements exceed more than 10% of the Ordinary Shares issued and similar transaction arrangementsoutstanding immediately prior to the date hereof and (y) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiB) an issuance of shares of Common Stock Ordinary Shares issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Ordinary Shares issued pursuant to an Approved Shares Plan that are covered by clause (A) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard options to purchase Ordinary Shares issued pursuant to an Approved Shares Plan that are covered by clause (A) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Ordinary Shares issued pursuant to an Approved Shares Plan that are covered by clause (nor is any provision of any such Convertible SecuritiesA) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Ordinary Shares issued pursuant to an Approved Shares Plan that are covered by clause (A) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iiiC); (C) the issuance Purchased Shares; and (D) the Warrant Shares. (each of securities the foregoing in clauses (A) through (D), collectively the “Excluded Securities”). “Approved Shares Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior or subsequent to the date of this Agreementhereof pursuant to which Ordinary Shares and standard options to purchase Ordinary Shares may be issued to any employee, remain officer or director for services provided to the Company in effect without amendment in their capacity as such. “Convertible Securities” means any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance share capital or other security of the Convertible NotesCompany or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the Conversion holder thereof to acquire, any share capital or other security of the Company (including, without limitation, Ordinary Shares, the Warrants and the Warrant Shares) or any of its Subsidiaries.
Appears in 1 contract
Sources: Securities Purchase Agreement (Color Star Technology Co., Ltd.)
Additional Issuance of Securities. The Company agrees that during for the period commencing on the date hereof and ending on the 30th calendar day after the Closing Date (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), 1▇▇▇ ▇▇▇) or any Convertible Securities, debt Securities (with or related to equity), any preferred stock or any purchase rights) (“Additional Issuance”as defined in the July SPA). Notwithstanding the foregoing, this Section 4(j4(b)(xix) shall not apply in respect of the following: issuance of (i) issuances shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to acquisitionsan Approved Stock Plan (as defined in the July SPA), joint venturesprovided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, license arrangementsin the aggregate, leasing arrangements exceed more than 10% of the Common Stock issued and similar transaction arrangementsoutstanding immediately prior to the date hereof and (2) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects the Holder; (ii) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (nor is any provision of any such Convertible Securitiesi) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerthe Holder; (iii) the issuance of securities to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included Conversion Shares (as defined in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amendedJuly SPA), and (iv) the issuance Warrant Shares (as defined in the July SPA), the August Warrant Shares (as defined in that certain Warrant Exercise Agreement, dated as of August 18, 2021, (the “August WEA”)) and the September Warrant Shares (each of the Convertible Notesforegoing in clauses (i) through (iv), collectively the Conversion Shares“Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Warrants and the Warrant SharesCompany in their capacity as such.
Appears in 1 contract
Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the sixty (60) Trading Day anniversary of the Closing Date (provided that such period shall be extended by the number of Trading Days during such period and any extension thereof contemplated by this proviso on which the Registration Statement is not effective or any prospectus contained therein is not available for use) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt (with or related to equity), any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j) shall not apply in respect of the following: issuance of (i) issuances shares of Common Stock or standard options to purchase Common Stock to directors, officers, employees or consultants of the Company or any of its Subsidiaries in their capacity as such pursuant to acquisitionsan Approved Share Plan (as defined below) (it being expressly understood and agreed that lawyers, joint ventureslaw firms, license arrangementsaccountants, leasing arrangements accounting firms and other similar transaction arrangementsprofessional advisors and professional advisory firms are not consultants), provided that (A) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 1,629,622 shares of Common Stock (adjusted for stock splits, stock combinations and other similar transactions) and (B) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; provided that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (nor is any provision of any such Convertible Securitiesi) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iii) shares of Common Stock issued pursuant to a bona fide firm commitment underwritten public offering with a nationally recognized underwriter that generates gross proceeds to the Company in excess of $25,000,000 (but expressly excluding “at-the-market offerings” (as defined in Rule 415(a)(4) under the ▇▇▇▇ ▇▇▇) and “equity lines of credit”); (iv) shares of Common Stock issued in connection with strategic alliances, strategic mergers and acquisitions and strategic partnerships, provided that (A) the primary purpose of such issuance is not to raise capital as determined in good faith by the Buyers, (B) the purchaser or acquirer of such shares of Common Stock in such issuance solely consists of either (1) the actual participants in such strategic alliance or strategic partnership, (2) the actual owners of such assets or securities acquired in such merger or acquisition or (3) the stockholders, partners or members of the foregoing Persons, (C) the number or amount (as the case may be) of such shares of Common Stock issued to such Person by the Company shall not be disproportionate to such Person’s actual participation in such strategic alliance or strategic partnership or ownership of such assets or securities to employeesbe acquired by the Company (as applicable) and (D) all such issuances of Common Stock after the date hereof pursuant to this clause (iv) do not, directors in the aggregate, exceed more than 3,259,244 shares of Common Stock (adjusted for stock splits, stock combinations and other third parties under an Approved Share Plansimilar transactions); (v) standard warrants to purchase Common Stock and the shares of Common Stock issuable upon exercise of such warrants issued solely to placement agents solely as compensation for services rendered to the Company in their capacity as such in connection with a Subsequent Placement, provided that provisions (A) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such Approved Share Plan that were in effect on warrants) after the date immediately prior hereof pursuant to this clause (i) do not, in the date aggregate, exceed more than 1,629,622 shares of this AgreementCommon Stock (adjusted for stock splits, remain stock combinations and other similar transactions), (B) the exercise price of any such warrants is not lower than the Exercise Price (as defined in effect without amendment the Warrants) and (C) the exercise price of any such warrants is not lowered, none of such warrants are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such warrants are otherwise materially changed in any manner that adversely affects any Buyer, including any amendment to increase of the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and Buyers; (ivvi) the issuance of the Convertible Notes, the Conversion Common Shares, (vii) the Warrants and (viii) the Warrant SharesShares (each of the foregoing in clauses (i) through (viii), collectively the “Excluded Securities”). “Approved Share Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer, director or consultant for services provided to the Company or any of its Subsidiaries in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Sources: Securities Purchase Agreement (Kandi Technologies Group, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of Buyers holding a majority in aggregate principal amount of the Notes then outstanding, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the ninety (90) Trading Day (as defined in the Warrants) anniversary of the Applicable Date (provided that such period shall be extended by the number of Trading Days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of or any option or right to purchase or other disposition of) any of their respective equity security or equity equivalent securities, including, without limitation, any equity-linked debt, preferred stock, rights, options, warrants or related security other instrument that is at any time and under any circumstances convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, capital stock and other securities of the Company (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under securities of the 1933 Act)Company or any Subsidiary which entitle the holder thereof to acquire Common Stock at any time, including without limitation, any Convertible Securitiesdebt, debt preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock or other securities that entitle the holder to receive, directly or indirectly, Common Stock) (collectively with or related to equity), any preferred such capital stock or any purchase rightsother securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the following: issuance of (iA) issuances shares of Common Stock or standard options to purchase Common Stock to directors, officers, consultants or employees of the Company in their capacity as such pursuant to acquisitionsan Approved Stock Plan (as defined below), joint venturesprovided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (A) do not, license arrangementsin the aggregate, leasing arrangements exceed more than 15% of the Common Stock issued and similar transaction arrangements; outstanding immediately prior to the date hereof and (ii2) an issuance such options are not amended to increase the number of shares issuable thereunder or to lower the exercise price thereof or to otherwise materially change the terms or conditions thereof in any manner that adversely affects any of the Buyers, (B) shares of Common Stock issued upon the conversion or exercise of Convertible Securities Equivalents issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms of such Convertible Securities (whether such Convertible Securities Equivalents have not been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to amended since the date of this Agreement, the conversion or exercise price of any such Convertible Securities is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) Agreement to increase the number of shares issuable thereunder and none of or to lower the exercise or conversion price thereof or otherwise materially change the terms or conditions of any such Convertible Securities are otherwise materially changed or waived (whether by the Company or the holder thereof) thereof in any manner that adversely affects any Buyer; (iii) the issuance of securities to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance of the Convertible NotesBuyers, (C) the Conversion Shares, (D) the Warrants and Interest Shares, (E) the Warrant SharesShares and (F) shares of Common Stock issued or issuable in connection with strategic alliances, acquisitions, mergers, and strategic partnerships, provided, that (x) the primary purpose of such issuance is not to raise capital as determined in good faith by the holders of a majority of the Registrable Securities, (y) the purchaser or acquirer of the securities in such issuance solely consists of either (I) the actual participants in such strategic alliance or strategic partnership, (II) the actual owners of such assets or securities acquired in such acquisition or merger or (III) the stockholders, partners or members of the foregoing Persons and (z) the number or amount of securities issued to such Person by the Company shall not be disproportionate to such Person’s actual participation in such strategic alliance or strategic partnership or ownership of such assets or securities to be acquired by the Company, as applicable (each of the foregoing in clauses (A) through (F), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer, consultant or director for services provided to the Company in their capacity as such.
Appears in 1 contract
Sources: Securities Purchase Agreement (Kandi Technologies Corp)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders (as defined below), issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 45th Trading Day after the later of (i) the earlier of (x) the Additional Closing Expiration Date and (y) the Second Additional Closing Date and (ii) the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible SecuritiesSecurities (as defined below), debt (with or related to equity)any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the following: issuance of (i) issuances shares of Common Stock or standard options to purchase Common Stock to directors, officers, consultants or employees of the Company in their capacity as such pursuant to acquisitionsan Approved Stock Plan (as defined below), joint venturesprovided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, license arrangementsin the aggregate, leasing arrangements exceed more than 7.5% of the Common Stock issued and similar transaction arrangementsoutstanding immediately prior to the date hereof and (2) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (nor is any provision of any such Convertible Securitiesi) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iii) the issuance of securities to employeesConversion Shares, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance Warrant Shares, (v) any shares of Common Stock issued or issuable pursuant to the Agreement and Plan of Merger, dated March 31, 2023, as amended and restated through the date hereof, with DMAC Merger Sub Inc., a Nevada corporation and newly formed wholly-owned subsidiary of the Convertible NotesCompany, Bright Vision Sponsor LLC, a Delaware limited liability company, and (vi) any shares of Common Stock issued or issuable in connection with any bona fide strategic or commercial alliances, acquisitions, mergers, licensing arrangements, and strategic partnerships, provided, that (1) the Conversion Sharesprimary purpose of such issuance is not to raise capital as reasonably determined, and (2) the Warrants purchaser or acquirer or recipient of the securities in such issuance solely consists of either (I) the actual participants in such strategic or commercial alliance, strategic or commercial licensing arrangement or strategic or commercial partnership, (II) the actual owners of such assets or securities acquired in such acquisition or merger or (III) the stockholders, partners, employees, consultants, officers, directors or members of the foregoing Persons, in each case, which is, itself or through its subsidiaries, an operating company or an owner of an asset, in a business synergistic with the business of the Company and shall provide to the Warrant SharesCompany additional benefits in addition to the investment of funds, and (IV) the number or amount of securities issued to such Persons by the Company shall not be disproportionate to each such Person’s actual participation in (or fair market value of the contribution to) such strategic or commercial alliance or strategic or commercial partnership or ownership of such assets or securities to be acquired by the Company, as applicable (each of the foregoing in clauses (i) through (vi), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock, restricted stock units and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 1 contract
Sources: Securities Purchase Agreement (TruGolf Holdings, Inc.)
Additional Issuance of Securities. The Except as set forth on Schedule 4(j), the Company agrees that during for the period commencing on the date hereof and ending ninety (90) days after the Closing Date (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of or any option or right to purchase or other disposition of) any of their respective equity security or equity equivalent securities, including, without limitation, any equity-linked debt, preferred stock, rights, options, warrants or related security other instrument that is at any time and under any circumstances convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, capital stock and other securities of the Company (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under securities of the 1933 Act)Company or any Subsidiary which entitle the holder thereof to acquire Common Stock at any time, including without limitation, any Convertible Securitiesdebt, debt preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock or other securities that entitle the holder to receive, directly or indirectly, Common Stock) (collectively with or related to equity), any preferred such capital stock or any purchase rightsother securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement being referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j) shall not apply in respect of the following: issuance of (iA) issuances shares of Common Stock or standard options to purchase Common Stock issued to directors, officers, employees or consultants of the Company in connection with their service as directors or officers of the Company, their employment by the Company or their retention as consultants by the Company pursuant to acquisitionsan equity compensation program or other contract or arrangement approved by the board of directors of the Company (or the compensation committee of the board of directors of the Company), joint venturesprovided that all such issuances of shares of Common Stock (including, license arrangementsshares of Common Stock issuable upon exercise of such standard options) after the date hereof pursuant to this clause (A) that are not described in clause (B) below do not, leasing arrangements in the aggregate, exceed more than 5% of the Common Stock issued and outstanding immediately prior to the date hereof (as adjusted for any stock dividend, stock split, stock combination or other similar transaction arrangementstransaction) (excluding, for purposes of the foregoing 5% calculation, shares of Common Stock issuable upon exercise of such standard options issued after the date hereof that have been terminated or forfeited), provided further that all such issuances must be for consideration per share or have an exercise price (as the case may be) (as determined pursuant to the provisions of Section 3(f)(i) of the Series A Warrants) greater than or equal to the fair market value of the Common Stock on the date of such issuance; (iiB) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities Equivalents issued prior to the date hereof or Convertible Securities hereof, provided that may be issued pursuant to an agreement in effect as of such Equivalents have not been amended since the date hereof; provided that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) hereof to increase the number of shares issuable thereunder and none of or to lower the exercise or conversion price thereof or otherwise materially change the terms or conditions of any such Convertible Securities are otherwise materially changed or waived (whether by the Company or the holder thereof) thereof in any manner that adversely affects any Buyerof the Buyers (it being understood that the adjustment of the exercise or conversion price thereof pursuant to anti-dilution provisions contained therein as of the date of this Agreement that are triggered by the transactions contemplated hereby shall not be deemed to be an amendment; any such adjustments, however, shall be described in Section 3(r)(ii) of the Disclosure Letter); (iiiC) the issuance Conversion Shares; (D) the Warrant Shares; (E) shares of securities Common Stock issued or issuable as a dividend on Common Stock; (F) up to employees1,090,910 shares of Common Stock issuable pursuant to warrants issued to the Placement Agent in connection with the transactions contemplated by this Agreement; (G) shares of Common Stock issued by the Company solely as a penalty pursuant to the registration rights agreements entered into by the Company in connection with the Company’s September 28, 2005, May 12, 2006 and February 15, 2007 private placement transactions; or (H) shares of Common Stock issued in connection with strategic transactions or acquisitions (the primary purpose of which is not to raise capital, and which are approved in good faith by the board of directors and other third parties under an Approved Share Plan; of the Company), provided that provisions of (i) any such Approved Share Plan that were in effect on issuance after the date hereof pursuant to this clause (H) shall only be to a Person that is, itself or through its subsidiaries, an operating company in a business synergistic with the business of the Company; (ii) all such issuances after the date hereof pursuant to this clause (H) do not, in the aggregate, exceed more than 10% of the shares of Common Stock issued and outstanding immediately prior to the date hereof (as adjusted for any stock dividend, stock split, stock combination or other similar transaction) and (iii) all such issuances after the date hereof pursuant to this clause (H) must have a price per share (as determined pursuant to the provisions of Section 3(f)(i) of the Series A Warrants) greater than or equal to the fair market value of the Common Stock on the date of such issuance (each of the foregoing in clauses (A) through (H), collectively the “Excluded Securities”). Notwithstanding anything to the contrary set forth herein or in the Certificate of Determination, with respect to clause (F) above, as well as clause (F) of the definition of “Excluded Securities” in the Certificate of Determination, the aggregate number of shares of Common Stock issuable pursuant to the warrants issued to the Placement Agent in connection with the transactions contemplated by this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment Agreement shall not exceed the sum of (i) 545,455 plus (ii) an amount equal to increase 6% of the number of shares of Common Stock issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance upon conversion of the Convertible Notesshares of Preferred Stock actually issued upon exercise of the Series B Warrants, determined on the Conversion Shares, the dates such Series B Warrants and the Warrant Sharesare exercised.
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Preferred Shares or Warrants, the Company will not, without the prior written consent of the Required Holders, directly or indirectly, issue any other securities that would cause a breach or default under the Certificate of Designations or the Warrants. The Company agrees that during the Restricted Periodunless Stockholder Approval (as defined herein) is obtained, the Company shall not affect any Dilutive Issuance (as defined in the Certificate of Designations). The Company further agrees that for the period commencing on the date hereof and ending on the date that is ninety (90) days following the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this Section 4(k) on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt Securities (with or related to equityas defined below), any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter), is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the following: issuance of (i) issuances pursuant to acquisitionsshares of Common Stock or other awards convertible, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an issuance of exercisable for or exchangeable for shares of Common Stock issued or issuable to directors, officers, employees or other service providers of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) following November 4, 2025 (the “Equity Award Restriction Date”), all such issuances (taking into account the shares of Common Stock issuable upon exercise of such awards) after the Equity Award Restriction Date pursuant to this clause (i) do not, in the aggregate, exceed more than 10.0% of the shares of Common Stock issued and outstanding immediately prior to the Equity Award Restriction Date and (2) the exercise price of any such options is not lowered and none of such options are amended to increase the number of shares issuable thereunder or extend the term of such options; (ii) shares of Common Stock issued or issuable upon the conversion or exercise of Convertible Securities (other than shares of Common Stock issued or issuable pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard options to purchase shares of Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than those issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that materially adversely affects any Buyerof the Buyers; (iii) the issuance Preferred Shares, (iv) the Conversion Shares, (v) the Warrant Shares and any other securities issued or issuable pursuant to this Agreement or any of the Transaction Documents, including, without limitation, any shares of Common Stock issued or issuable pursuant to Section 9 of the Certificate of Designations, (vi) securities to employeesissued as consideration for the acquisition of another entity by the Company by merger, directors and purchase of substantially all of the assets or other third parties under an Approved Share Plan; reorganization or bona fide joint venture agreement, provided that provisions such issuance is approved by the majority of the disinterested directors of the Company and provided that such Approved Share Plan securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that were require or permit the filing of any registration statement in effect on connection therewith during the date Restricted Period and such issuance does not, in the aggregate, exceed more than 5% of the shares of Common Stock issued and outstanding immediately prior to the date hereof, (vii) the Series H-7 Convertible Preferred Stock, par value $0.0001 per share (the “Series H-7 Preferred Stock”), pursuant to that certain Certificate of this AgreementDesignations establishing the rights, remain preferences, restrictions and other matters relating to the Series H-7 Preferred Stock (the “Series H-7 Certificate of Designations”), (viii) shares of Common Stock issuable upon conversion of the Series H-7 Preferred Stock in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed accordance with the SEC on December 30Series H-7 Certificate of Designations, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (ivix) the issuance of the payment of dividends of preferred share purchase rights (the “Rights”), with each such Right entitling the holder to purchase from the Company one one-thousandth of a share of Series A Junior Participating Preferred Stock, par value $0.0001 per share (the “Series A Preferred Stock”), of the Company, declared by the board of directors of the Company on July 31, 2025, to stockholders of record at the close of business on August 11, 2025, (x) the Series A Preferred Stock, pursuant to that certain Certificate of Designations establishing the rights, preferences, restrictions and other matters relating to the Series A Preferred Stock (the “Series A Certificate of Designations”), (xi) shares of Common Stock as payment of dividends on the Series A Preferred Stock in accordance with the Series A Certificate of Designations (each of the foregoing in clauses (i) through (xi), collectively the “Excluded Securities”) and (xii) provided the closing price of the Common Stock on the Trading Market equals or exceeds 200% of the initial Conversion Price (as defined in the Certificate of Designations) for three consecutive Trading Days, sales of shares of Common Stock or Convertible NotesSecurities at a per share purchase price in excess of 160% of the initial Conversion Price (as defined in the Certificate of Designations) (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations and similar events; provided that if 90% of the Conversion Sharesaggregate Stated Value (as defined in the Certificate of Designations) of the Preferred Shares has been paid in full to the Buyers or otherwise converted to Common Stock, then the Warrants and Company may sell shares of Common Stock at a per share purchase price in excess of 130% of the Warrant Sharesexercise price of the Warrants). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock or other awards convertible, exercisable for or exchangeable for shares of Common Stock may be issued to any employee, officer, director or other service provider for services provided to the Company and/or a Subsidiary in their capacity as such.
Appears in 1 contract
Additional Issuance of Securities. (i) The Company agrees that during for the period commencing on the date hereof and ending on the date immediately following the ten (10) month anniversary of the Closing Date (collectively, the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt (with or related to equity)any Ordinary Shares, any ADSs, any preferred stock shares or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(m) shall not apply in respect of the following: (i) issuances the issuance of (A) Ordinary Shares or ADSs or standard options to purchase Ordinary Shares or ADSs to directors, officers or employees of the Company in their capacity as such pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangementsan Approved Share Plan (as defined below); (iiB) an issuance of shares of Common Stock Ordinary Shares or ADSs issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Ordinary Shares or ADSs issued pursuant to an Approved Share Plan that are covered by clause (A) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; provided that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities (other than standard options to purchase Ordinary Shares or ADSs issued pursuant to an Approved Share Plan that are covered by clause (A) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Ordinary Shares or ADSs issued pursuant to an Approved Share Plan that are covered by clause (nor is any provision of any such Convertible SecuritiesA) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Ordinary Shares or ADSs issued pursuant to an Approved Share Plan that are covered by clause (A) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iiiC) the issuance Purchased Shares, (D) the Warrant Shares and (E) the ADR Securities (each of securities to employeesthe foregoing in clauses (A) through (E), directors and other third parties under an collectively the “Excluded Securities”). “Approved Share Plan; provided that provisions ” means any employee benefit plan which has been approved by the board of such Approved Share Plan that were in effect on directors of the date immediately Company prior to or subsequent to the date hereof pursuant to which Ordinary Shares or ADSs and standard options to purchase Ordinary Shares or ADSs may be issued to any employee, officer or director for services provided to the Company or any of this Agreement, remain its Subsidiaries in effect without amendment in their capacity as such. “Convertible Securities” means any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance share capital or other security of the Convertible NotesCompany or any of its Subsidiaries that is, or may become, at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the Conversion Sharesholder thereof to acquire, any share capital or other security of the Warrants and the Warrant SharesCompany (including, without limitation, Ordinary Shares or ADSs) or any of its Subsidiaries.
Appears in 1 contract
Sources: Securities Purchase Agreement (JA Solar Holdings Co., Ltd.)
Additional Issuance of Securities. The Company agrees that during for the period commencing on the date hereof and ending on the date that is 90 days after the date hereof (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity Common Stock or any security or any debt or other instrument directly or indirectly convertible or exchangeable or exercisable into Common Stock (each a “Convertible Security”) or which constitutes (or would constitute but for lack of a fixed exercise or conversion or similar price or if it were not solely cash settled) a “derivative security” (as defined under the rules and regulations under Section 16 of the ▇▇▇▇ ▇▇▇) or otherwise an equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt (with or related to equity), any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this This Section 4(j4(b) shall not apply in respect of the following: issuance of (iA) issuances shares of Common Stock or options to purchase Common Stock or other equity linked securities (e.g., stock appreciation rights) to directors, officers or employees of the Company in their capacity as such pursuant to acquisitionsan Approved Share Plan), joint venturesprovided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (A) do not, license arrangementsin the aggregate, leasing arrangements exceed more than 2% of the shares of Common Stock and similar transaction arrangements(2) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiB) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; provided that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (nor is any provision of any such Convertible SecuritiesA) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iiiC) the issuance of securities to employees, directors and other third parties under an Approved Share PlanWarrants; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (ivD) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Shares.; (E) issuances of equity to a seller, or in the case of a merger, the equity holders of the target company in such merger, or the officers or employees thereof, in each case in connection with a bona fide merger, business combination transaction or acquisition of stock or assets outside of the ordinary course; (F) a stock split or other subdivision or combination, or a stock dividend made to all holders of any Company equity on a pro rata basis; or (G) shares of Common Stock or Convertible Securities issued to a bank or other Person acting as bona fide lender in connection with a credit facility or other indebtedness provided by such Person (each of the foregoing in clauses (A) through (G), collectively the “Excluded Securities”). “Approved
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders (as defined below), issue any Preferred Shares (in each case, other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Statement of Designations. The Company agrees that during for the period commencing on the date hereof and ending on the date immediately following, the 90thcalendar day after the Closing Date (as applicable, the "Restricted Period"), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “"equity security” " (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible SecuritiesSecurities (as defined below), debt (with or related to equity)any debt, any preferred stock or any purchase rights) (“Additional Issuance”any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a "Subsequent Placement"). Notwithstanding the foregoing, this Section 4(j4(m) shall not apply in respect of the following: issuance of (i) issuances shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to acquisitionsan Approved Stock Plan (as defined below), joint venturesprovided that the exercise price of any such options is not lowered, license arrangements, leasing arrangements none of such options are amended to increase the number of shares issuable thereunder and similar transaction arrangementsnone of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (nor is any provision of any such Convertible Securitiesi) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iii) the issuance Common Shares, (iv) Conversion Shares, (v) the Warrant Shares, (vi) the shares of securities Common Stock issued pursuant to employeesany equity line agreement, by and between the Company and [●] (or any affiliate thereof) and (vii) up to 3,500,000 shares of Common Stock issued directly or upon conversion of Convertible Securities issued pursuant to that certain Amended and Restated Secured Revolving Facility Agreement between the Company and Sifnos Shareholders Inc., dated April 5, 2016, (each of the foregoing in clauses (i) through (vii), collectively the "Excluded Securities"). "Approved Stock Plan" means any employee benefit plan which has been approved by the board of directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately Company prior to or subsequent to the date hereof pursuant to which shares of this AgreementCommon Stock and standard options to purchase Common Stock may be issued to any employee, remain officer or director for services provided to the Company in effect without amendment in their capacity as such. "Convertible Securities" means any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance capital stock or other security of the Convertible NotesCompany or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the Conversion Sharesholder thereof to acquire, any capital stock or other security of the Warrants and the Warrant SharesCompany (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Additional Issuance of Securities. The Company agrees that during for the period commencing on the date hereof and ending on the thirtieth (30th) day after the date hereof (the “Restricted Period”), neither the Company shall not nor any of its Subsidiaries shall, without the prior consent of the Purchasers, (i) directly or indirectly indirectly, issue, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option option, right or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right warrant to purchase or other disposition of) otherwise transfer or dispose of any equity security share of Common Stock or any equity-linked securities convertible into or related security (including, without limitation, exercisable or exchangeable for Common Stock or file any “equity security” (as that term is defined under Rule 405 promulgated registration statement under the 1933 Act), Act (other than a Registration Statement on Form S-8) with respect to any Convertible Securities, debt (with or related to equity), any preferred stock or any purchase rights) (“Additional Issuance”). Notwithstanding of the foregoing, or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The provisions of this Section 4(j) section shall not apply in respect to (A) the Securities to be issued and sold hereunder or issuable upon conversion or exercise of the following: Securities, (iB) issuances pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities the warrants issued prior to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLC in connection with the transactions contemplatd by this Agreement, (C) issuances of shares of Common Stock issuable upon exchange or conversion of currently outstanding convertible notes, (D) issuances of shares of Common Stock upon the exercise of currently outstanding warrants or amendments to the warrant agreements related thereto, (E) granting options under the Company’s incentive compensation plans existing on the date hereof or Convertible Securities that may be issued issuances of shares of Common Stock issuable in connection with outstanding awards thereunder as of the date hereof, (F) issuances of shares of Common Stock issuable pursuant to an agreement agreements in effect as of the date hereof; provided that definitive terms hereof or amendments related thereto or (G) issuing shares of such Convertible Securities Common Stock in connection with strategic acquisitions, (whether such Convertible Securities have been issued or will be issuedH) have been disclosed in the SEC Documents; andissuing shares of Common Stock subject to shareholder approval, provided further that the conversion or exercise (as the case may beI) issuing shares of any such Convertible Security is made solely preferred stock and/or Common Stock pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise an underwritten public offering with a per share price of any such Convertible Securities is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; (iii) the issuance of securities to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Sharesgreater than $2.00.
Appears in 1 contract
Sources: Securities Purchase Agreement (Cell Therapeutics Inc)
Additional Issuance of Securities. The Company agrees that during for the Restricted Periodperiod commencing on the date hereof and ending on the thirtieth (30th) day after the date hereof, neither the Company shall not nor any of its Subsidiaries shall, without the prior consent of the Purchasers, (i) directly or indirectly indirectly, issue, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option option, right or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right warrant to purchase or other disposition of) otherwise transfer or dispose of any equity security share of Common Stock or any equity-linked securities convertible into or related security (including, without limitation, exercisable or exchangeable for Common Stock or file any “equity security” (as that term is defined under Rule 405 promulgated registration statement under the 1933 Act), Securities Act (other than a Registration Statement on Form S-8) with respect to any Convertible Securities, debt (with or related to equity), any preferred stock or any purchase rights) (“Additional Issuance”). Notwithstanding of the foregoing, or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise; provided, however, that nothing in the foregoing clauses (i) and (ii) shall be construed as limiting the Company’s ability to negotiate and/or otherwise prepare to consummate a transaction following the expiration of the restricted period so long as such transaction is not publicly announced prior to the expiration of the restricted period. The provisions of this Section 4(j) 4.11 shall not apply in respect to (A) the Securities to be issued and sold hereunder or issuable upon conversion or exercise of the following: Securities, (iB) issuances pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an issuance of shares of Common Stock issued issuable upon conversion or exchange of currently outstanding convertible notes, (C) issuances of shares of Common Stock upon the conversion or exercise of Convertible Securities issued prior currently outstanding warrants or amendments to the warrant agreements related thereto, (D) granting options or other securities under the Company’s incentive compensation plans existing on the date hereof or Convertible Securities that may be issued issuances of shares of Common Stock issuable in connection with outstanding awards thereunder as of the date hereof, (E) issuances of shares of Common Stock issuable pursuant to an agreement agreements in effect as of the date hereofhereof or amendments related thereto, (F) issuances of shares of Common Stock in connection with strategic acquisitions, licensing agreements or partnering arrangements, or (G) issuances of shares of Common Stock subject to shareholder approval; provided provided, however, that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; andcase of clause (C) above, provided further that the conversion or exercise (no shares of Common Stock shall be issued as the case may be) a result of any an amendment to such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on securities after the date immediately hereof and prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none expiration of the terms or conditions of any such Convertible Securities are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; (iii) the issuance of securities to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Sharesrestricted period.
Appears in 1 contract
Sources: Securities Purchase Agreement (Cell Therapeutics Inc)
Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the forty-fifth (45th) Trading Day anniversary of the Closing Date (provided that such period shall be extended by the number of Trading Days during such period and any extension thereof contemplated by this proviso on which the Registration Statement is not effective or any prospectus contained therein is not available for use) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt Securities (with or related to equityas defined below), any debt, preferred stock shares or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(l) shall not apply in respect of the following: issuance of (i) issuances Common Shares or standard options to purchase Common Shares to directors, officers or employees of the Company or any of its Subsidiaries in their capacity as such pursuant to acquisitionsan Approved Share Grant (as defined below) or consultants (solely to the extent the related Common Shares issued or issuable to such consultants (or any designee thereof) are only issued as “restricted securities” (as defined in Rule 144) and shall not have registration rights that would provide for or allow registration for resale during the Restricted Period) (it being expressly understood and agreed for purposes of this section that lawyers, joint ventureslaw firms, license arrangementsaccountants, leasing arrangements accounting firms and other similar transaction arrangements; professional advisors and professional advisory firms are not consultants), provided that (iiA) an issuance of shares of all such issuances (taking into account the Common Stock issued Shares issuable upon the conversion or exercise of Convertible Securities issued prior to such options) after the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; provided that definitive terms of such Convertible Securities this clause (whether such Convertible Securities have been issued or will be issuedi) have been disclosed do not, in the SEC Documents; andaggregate, provided further that exceed more than two hundred thousand (200,000) Common Shares (adjusted for share splits, share combinations and other similar transactions) and (B) the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities options is not lowered, none of such Convertible Securities options are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) Common Shares issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Shares issued pursuant to an Approved Share Grant that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion exercise or issuance price of any such Convertible Securities (other than standard options to purchase Common Shares issued pursuant to an Approved Share Grant that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Shares issued pursuant to an Approved Share Grant that are covered by clause (i) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase, or which results in an increase in, the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Shares issued pursuant to an Approved Share Grant that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iii) Common Shares issued in connection with strategic alliances, strategic mergers and acquisitions and strategic partnerships, provided that (A) the primary purpose of such issuance is not to raise capital as determined in good faith by the Buyers, (B) the purchaser or acquirer of such Common Shares in such issuance solely consists of either (1) the actual participants in such strategic alliance or strategic partnership, (2) the actual owners of such assets or securities acquired in such merger or acquisition or (3) the shareholders, partners or members of the foregoing Persons, (C) the number or amount (as the case may be) of such Common Shares issued to such Person by the Company shall not be disproportionate to such Person’s actual participation in such strategic alliance or strategic partnership or ownership of such assets or securities to employeesbe acquired by the Company (as applicable), directors (D) all such issuances of Common Shares after the date hereof pursuant to this clause (iii) do not, in the aggregate, exceed more than two hundred thousand (200,000) Common Shares (adjusted for share splits, share combinations and other third parties under an Approved Share Plansimilar transactions) and (E) such Common Shares are issued as “restricted securities” (as defined in Rule 144) and shall not have registration rights that would provide for or allow registration for resale during the Restricted Period; (iv) standard warrants to purchase Common Shares and the Common Shares issuable upon exercise of such warrants issued solely to placement agents solely as compensation for services rendered to the Company in their capacity as such in connection with a Subsequent Placement, provided that provisions (A) all such issuances (taking into account the Common Shares issuable upon exercise of such Approved Share Plan that were in effect on warrants) after the date immediately prior hereof pursuant to this clause (iv) do not, in the date aggregate, exceed more than two hundred thousand (200,000) Common Shares (adjusted for share splits, share combinations and other similar transactions), (B) the exercise price of this Agreementany such warrants is not lower than the Exercise Price (as defined in the Warrants) and (C) the exercise price of any such warrants is not lowered, remain in effect without amendment none of such warrants are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such warrants are otherwise materially changed in any manner that adversely affects any Buyer, including any amendment to increase of the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and Buyers; (ivv) the issuance of the Convertible Notes, the Conversion Registered Shares, (vi) the Warrants and (vii) the Warrant Shares (including securities issued to the Placement Agent) provided that such Warrants are not amended modified after the date hereof (each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”). “Approved Share Grant” means any employee benefit plan, employment agreement or consulting agreement which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which Common Shares and standard options to purchase Common Shares may be issued to any employee, officer, director or consultant for services provided to the Company or any of its Subsidiaries in their capacity as such. “Convertible Securities” means any share capital, note, debenture or other security of the Company or any of its Subsidiaries that is, or may become, at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any share capital, note, debenture or other security of the Company (including, without limitation, Common Shares) or any of its Subsidiaries.
Appears in 1 contract
Sources: Securities Purchase Agreement (Tantech Holdings LTD)
Additional Issuance of Securities. The Company agrees that during for the period commencing on the date hereof and ending on the 30th calendar day after the Closing Date (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), 1▇▇▇ ▇▇▇) or any Convertible Securities, debt Securities (with or related to equity), any preferred stock or any purchase rights) (“Additional Issuance”as defined in the January SPA). Notwithstanding the foregoing, this Section 4(j4(b)(xix) shall not apply in respect of the following: issuance of (i) issuances shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to acquisitionsan Approved Stock Plan (as defined in the January SPA), joint venturesprovided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, license arrangementsin the aggregate, leasing arrangements exceed more than 10% of the Common Stock issued and similar transaction arrangementsoutstanding immediately prior to the date hereof and (2) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects the Holder; (ii) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (nor is any provision of any such Convertible Securitiesi) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerthe Holder; (iii) the issuance of securities to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included Conversion Shares (as defined in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amendedJanuary SPA), and (iv) the issuance Warrant Shares (as defined in the January SPA) and the June Warrant Shares (each of the Convertible Notesforegoing in clauses (i) through (iv), collectively the Conversion Shares“Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Warrants and the Warrant SharesCompany in their capacity as such.
Appears in 1 contract
Additional Issuance of Securities. The Company agrees that during for (x) the period commencing on the date hereof and ending on the date immediately following the 60th calendar day after the Closing Date and (y) each 60 calendar day period commencing on, and including, each Forced Exercise Date (as defined in the Series D Warrant) and each delivery of the Forced Exercise Deliveries (as defined in the Series D Warrant) (each, a “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt (with or related to equity), any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the applicable Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(l)(iii) shall not apply in respect of the following: issuance of (iA) issuances shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to acquisitionsan Approved Stock Plan (as defined below), joint venturesprovided that (x) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (A) do not, license arrangementsin the aggregate, leasing arrangements exceed more than 5% of the Common Stock issued and similar transaction arrangementsoutstanding immediately prior to the date hereof and (y) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiB) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (A) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (A) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (nor is any provision of any such Convertible SecuritiesA) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (A) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iiiC) the issuance Common Shares; (D) the Warrant Shares; (E) the Preferred Shares (and any shares of securities Common Stock upon conversion of Preferred Shares); (F) shares of Common Stock or Convertible Securities issued pursuant to employeesacquisitions or strategic transactions approved by a majority of the disinterested directors of the Company, directors and other third parties under an Approved Share Plan; provided that provisions such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during any Restricted Period and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the current business of the Company at such time and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities. (each of the foregoing in clauses (A) through (F), collectively the “Excluded Securities”); and (G) after the thirtieth calendar day of any Restricted Period, a Subsequent Placement consisting of only shares of Common Stock at a cash purchase price greater than or equal to $2.75 per share of Common Stock (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations and similar events). “Approved Share Plan that were in effect on Stock Plan” means any employee benefit plan which has been approved by the date immediately board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of this AgreementCommon Stock and standard options to purchase Common Stock may be issued to any employee, remain officer or director for services provided to the Company in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, their capacity as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Sharessuch.
Appears in 1 contract
Sources: Securities Purchase Agreement (American Virtual Cloud Technologies, Inc.)
Additional Issuance of Securities. (i) The Company agrees that during for the period commencing on the date hereof and ending on the date immediately following the 45th day after the later of the Execution Date or satisfaction of the Registration Statement condition set forth on Annex A to the Buyer Schedule (the “Restricted Period”), the Company shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securitiesconvertible securities, debt (with or related to equity), any preferred stock or any purchase rights) (“Additional Issuance”). Notwithstanding the foregoingDM_US 86580026-11.096039.0012 ▇▇▇▇-▇▇▇▇-▇▇▇▇, this Section 4(j) shall not apply in respect of the following: (i) issuances pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; v. 1
(ii) Notwithstanding the foregoing restriction set forth in Section 4(j), the Company may issue: (A) shares of Common Stock or standard options to purchase Common Stock to directors (who are also employees of the Company), officers, employees or consultants of the Company pursuant to an issuance Approved Share Plan (as defined below) or otherwise as approved by the board of directors prior to the Execution Date and to directors of the Company who are not also employees of the Company, in each case, in their capacity as such, provided that the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects Buyer; (B) shares of Common Stock or Convertible Securities issued pursuant to exercise of preexisting rights under financing agreements entered into by the Company prior to the Execution Date, including shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; provided that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; andExecution Date, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) is not lowered, none of such Convertible Securities are (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; (iiiC) the issuance of securities to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were any registered offering in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in accordance with the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and existing Form S-3 shelf registration statement; (ivD) the issuance of the Convertible NotesSeries C Preferred Shares, the Conversion Shares, the Warrants Warrants, and the Warrant Shares; or (E) an issuance of Common Stock pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and the like; the above securities in clauses (A)-(E) being the “Excluded Securities”. “Approved Share Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to the Execution Date pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer, director or consultant for services provided to the Company in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock). Notwithstanding anything to the contrary in this Section 4(j), the Company may issue equity security or any equity-linked or related security during the Restricted Period, provided that upon such issuance, the Conversion Price of the Series C Preferred Shares and shall be adjusted to the extent provided in Section 4.2(b) of the Certificate of Designation.
Appears in 1 contract
Sources: Securities Purchase Agreement (Skyline Medical Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the Public Company Date and ending on the date immediately following the 90th Trading Day after the later of (x) the Qualified Public Company Date (or, if any of the Underlying Securities are subject to a lockup in connection with the Public Company Date, the date of termination (or expiration, as applicable) of such lockup) and (y) the earlier to occur of (x) the effective date of a registration statement registering the resale by the Investors of the Underlying Securities and (y) the date the Securities are initially eligible to be resold by the Investors pursuant to Rule 144 (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any registration statement registering the resale of any Underlying Securities is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure (as defined in the Registration Rights Agreement) exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible SecuritiesSecurities (as defined below), debt (with or related to equity)any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(w) shall not apply in respect of the following: issuance of (i) issuances shares of Common Stock or standard equity awards to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to acquisitionsan Approved Stock Plan (as defined below), joint venturesprovided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, license arrangementsin the aggregate, leasing arrangements exceed more than 5% of the Common Stock issued and similar transaction arrangementsoutstanding immediately prior to the date hereof and (2) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (nor is any provision of any such Convertible Securitiesi) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iii) the issuance of securities to employeesConversion Shares, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the Warrant Shares and (v) any shares of Common Stock issued or issuable in connection with any bona fide strategic or commercial alliances, acquisitions, mergers, licensing arrangements, and strategic partnerships, provided, that (x) the primary purpose of such issuance is not to raise capital as reasonably determined, and (y) the purchaser or acquirer or recipient of the Convertible Notessecurities in such issuance solely consists of either (I) the actual participants in such strategic or commercial alliance, strategic or commercial licensing arrangement or strategic or commercial partnership, (II) the Conversion Sharesactual owners of such assets or securities acquired in such acquisition or merger or (III) the stockholders, partners, employees, consultants, officers, directors or members of the Warrants foregoing Persons, in each case, which is, itself or through its subsidiaries, an operating company or an owner of an asset, in a business synergistic with the business of the Company and shall provide to the Warrant Shares.Company additional benefits in addition to the investment of funds, and (z) the number or amount of securities issued to such Persons by the Company shall not be disproportionate to each such Person’s actual participation in (or fair market value of the
Appears in 1 contract
Sources: Securities Purchase Agreement (Heart Test Laboratories, Inc.)
Additional Issuance of Securities. The Company agrees that, for the period commencing on the date hereof and ending on the earlier to occur of (i) the date immediately following the first anniversary of the Initial Investment Date; or (ii) the date that during the arithmetic average of the closing sale price of the Common Stock is at least $0.30 for ten (10) consecutive trading days (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Securities Act), any Convertible Securitiesconvertible securities, debt (with or related to equity)any debt, any preferred stock or any purchase rightsrights (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) (is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(a) shall not apply in respect of the following: issuance of:
(i) issuances shares of Common Stock or standard options to purchase Common Stock to directors, officers, consultants or employees of the Company in their capacity as such pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; an Approved Share Plan (as defined below);
(ii) an issuance of shares of Common Stock issued upon the conversion or exercise of of, or otherwise on account of, Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) is not lowered, none of such Convertible Securities are (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase, or which results in an increase in, the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; of the Purchasers;
(iii) the issuance of securities to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and Conversion Shares,
(iv) the issuance Warrants; and
(v) the Warrant Shares (each of the Convertible Notesforegoing in clauses (i) through (v), collectively the Conversion Shares, the Warrants and the Warrant Shares“Excluded Securities”).
Appears in 1 contract
Sources: Securities Purchase Agreement (True Drinks Holdings, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns at least $387,500 of Notes, in the aggregate, the Company will not, without the prior written consent of the Required Holders, issue any Notes other than to the Buyers as contemplated hereby and the Company shall not issue any other securities that would cause a breach or default under the Notes. The Company agrees that (i) during the period (the “Initial Restricted Period”) commencing on the date hereof through, and including, June 30, 2019, neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt Securities (with or related to equityas defined below), any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”) at a price per share of Common Stock less than the Conversion Price (as defined in the Notes) as of the Closing Date (as adjusted for stock splits, stock dividends, stock combinations recapitalizations and similar events) (each, a “Below Market Subsequent Placement”) and (ii) from and after July 1, 2019, so long as any Notes remain outstanding (such period, the “Additional IssuanceRestricted Period”, and together with the Initial Restricted Period, the “Restricted Period”), the Company shall not consummate any Below Market Subsequent Placement unless (x) the aggregate gross consideration received (and/or receivable upon exercise of securities issuable, directly or indirectly, in such Subsequent Placement) (collectively, the “Additional Equity Issuance Amount”) by the Company (as calculated in accordance with Section 7(a)(iv) of the Notes), directly or indirectly, in such Below Market Subsequent Placement is less than or equal to $5 million and consummated at a single closing (which $5 million includes any proceeds or potential proceeds from exercises of any Options (as defined in the Notes) issued in such Below Market Subsequent Placement), and (y) the Company complies with the terms and conditions of the Notes with respect to the calculation of each Maximum Acceleration Number (as defined in the Note) after giving effect to such Below Market Subsequent Placement in connection with any subsequent Acceleration (as defined in the Note) under the Notes. Notwithstanding the foregoing, this Section 4(j4(o) and Section 4(s) shall not apply in respect of the following: issuance of (i) issuances shares of Common Stock or standard options to purchase Common Stock to directors, officers, consultants or employees of the Company or any Significant Subsidiary in their capacity as such pursuant to acquisitionsan Approved Stock Plan (as defined below), joint venturesprovided that (1) the exercise price of any such options is not lowered, license arrangementsnone of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise changed in any manner that adversely affects any of the Buyers and (2) any such shares of Common Stock issued (other than shares of Common Stock issued upon exercise of standard options to purchase Common Stock outstanding as of the date hereof pursuant to such terms thereof in effect as of the date hereof) and shares of Common Stock issued upon exercise of standard options to purchase Common Stock, leasing arrangements after the date hereof, do not, in the aggregate, exceed more than 10% of the Common Stock issued and similar transaction arrangementsoutstanding immediately prior to the date hereof; (ii) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan after the date hereof that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (nor is any provision of any such Convertible Securitiesi) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iii) the Conversion Shares; (iv) any shares of Common Stock issued or issuable in connection with any bona fide strategic or commercial alliances, acquisitions, mergers, licensing arrangements, and strategic partnerships, provided, that (x) the primary purpose of such issuance is not to raise capital as reasonably determined, and (y) the purchaser or acquirer or recipient of the securities in such issuance solely consists of either (A) the actual participants in such strategic or commercial alliance, strategic or commercial licensing arrangement or strategic or commercial partnership, (B) the actual owners of such assets or securities acquired in such acquisition or merger or (C) the stockholders, partners, employees, consultants, officers, directors or members of the foregoing Persons, in each case, which is, itself or through its subsidiaries, an operating company or an owner of an asset, in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, and (z) the number or amount of securities issued to employees, directors and other third parties under an Approved Share Plan; provided that provisions such Persons by the Company shall not be disproportionate to each such Person’s actual participation in (or fair market value of the contribution to) such strategic or commercial alliance or strategic or commercial partnership or ownership of such assets or securities to be acquired by the Company, as applicable; or (v) equity securities of Lucid Diagnostics (as defined in the Securities Purchase Agreement) issuable in respect of the current anti-dilution rights of its shareholders, or in connection with an equity offering approved in good faith by Lucid Diagnostics’ board of directors (each of the foregoing in clauses (i) through (v), collectively the “Excluded Securities”). “Approved Share Plan that were in effect on Stock Plan” means any employee benefit plan which has been approved by the date immediately board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of this AgreementCommon Stock and standard options to purchase Common Stock may be issued to any employee, remain officer, consultant or director for services provided to the Company or any Significant Subsidiary in effect without amendment in their capacity as such. “Convertible Securities” means any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance capital stock or other security of the Convertible NotesCompany or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the Conversion Sharesholder thereof to acquire, any capital stock or other security of the Warrants and the Warrant SharesCompany (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Note or Warrants, the Company will not, without the prior written consent of the Required Holders, directly or indirectly, issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 45th day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant enter into any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt (with or related to equity), any preferred stock or any purchase rights) (“Additional Issuance”)Subsequent Placement. Notwithstanding the foregoing, this Section 4(j) 4.15 shall not apply in respect of the following: issuance of (i) issuances pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an issuance of shares of Common Stock issued or issuable to directors, officers, employees or other service providers of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such awards) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 5% of the shares of Common Stock issued and outstanding immediately prior to the date hereof and (2) the exercise price of any such options is not lowered and none of such options are amended to increase the number of shares issuable thereunder or extend the term of such options; (ii) shares of Common Stock issued or issuable upon the conversion or exercise of Convertible Securities (other than shares of Common Stock issued or issuable pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; (iii) the issuance of securities to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Shares.Convertible
Appears in 1 contract
Sources: Securities Purchase Agreement (Nuvve Holding Corp.)
Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the sixty (60) Trading Day anniversary of the Closing Date (provided that such period shall be extended by the number of Trading Days during such period and any extension thereof contemplated by this proviso on which the Registration Statement is not effective or any prospectus contained therein is not available for use) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt (with or related to equity), any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j) shall not apply in respect of the following: issuance of (i) issuances shares of Common Stock or standard options to purchase Common Stock to directors, officers, employees or consultants of the Company or any of its Subsidiaries in their capacity as such pursuant to acquisitionsan Approved Share Plan (as defined below) (it being expressly understood and agreed that lawyers, joint ventureslaw firms, license arrangementsaccountants, leasing arrangements accounting firms and other similar transaction arrangementsprofessional advisors and professional advisory firms are not consultants), provided that (A) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 1,218,341 shares of Common Stock (adjusted for stock splits, stock combinations and other similar transactions) and (B) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; provided that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (nor is any provision of any such Convertible Securitiesi) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iii) shares of Common Stock issued pursuant to a bona fide firm commitment underwritten public offering with a nationally recognized underwriter that generates gross proceeds to the Company in excess of $25,000,000 (but expressly excluding “at-the-market offerings” (as defined in Rule 415(a)(4) under the ▇▇▇▇ ▇▇▇) and “equity lines of credit”); (iv) shares of Common Stock issued in connection with strategic alliances, strategic mergers and acquisitions and strategic partnerships, provided that (A) the primary purpose of such issuance is not to raise capital as determined in good faith by the Buyers, (B) the purchaser or acquirer of such shares of Common Stock in such issuance solely consists of either (1) the actual participants in such strategic alliance or strategic partnership, (2) the actual owners of such assets or securities acquired in such merger or acquisition or (3) the stockholders, partners or members of the foregoing Persons, (C) the number or amount (as the case may be) of such shares of Common Stock issued to such Person by the Company shall not be disproportionate to such Person’s actual participation in such strategic alliance or strategic partnership or ownership of such assets or securities to employeesbe acquired by the Company (as applicable) and (D) all such issuances of Common Stock after the date hereof pursuant to this clause (iv) do not, directors in the aggregate, exceed more than 2,436,682 shares of Common Stock (adjusted for stock splits, stock combinations and other third parties under an Approved Share Plansimilar transactions); (v) standard warrants to purchase Common Stock and the shares of Common Stock issuable upon exercise of such warrants issued solely to placement agents solely as compensation for services rendered to the Company in their capacity as such in connection with a Subsequent Placement, provided that provisions (A) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such Approved Share Plan that were in effect on warrants) after the date immediately prior hereof pursuant to this clause (i) do not, in the date aggregate, exceed more than 1,218,341 shares of this AgreementCommon Stock (adjusted for stock splits, remain stock combinations and other similar transactions), (B) the exercise price of any such warrants is not lower than the Exercise Price (as defined in effect without amendment the Warrants) and (C) the exercise price of any such warrants is not lowered, none of such warrants are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such warrants are otherwise materially changed in any manner that adversely affects any Buyer, including any amendment to increase of the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and Buyers; (ivvi) the issuance of the Convertible Notes, the Conversion Common Shares, (vii) the Warrants and (viii) the Warrant SharesShares (each of the foregoing in clauses (i) through (viii), collectively the “Excluded Securities”). “Approved Share Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer, director or consultant for services provided to the Company or any of its Subsidiaries in their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Sources: Securities Purchase Agreement (Kandi Technologies Corp)
Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending on the sixty-first (61st) day immediately following the Closing Date (provided that such period shall be extended by the number of days during such period and any extension thereof contemplated by this proviso on which the Registration Statement is not effective or any prospectus contained therein is not available for use) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act)), any Convertible Securities, debt (with or related to equity)any debt, any preferred stock or any purchase rightsrights (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) (is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j) shall not apply in respect of the following: (i) issuances pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an issuance of (A) shares of Common Stock issued upon or standard options to purchase Common Stock to directors, officers, employees or consultants of the conversion or exercise of Convertible Securities issued prior to the date hereof or Convertible Securities that may be issued Company in their capacity as such pursuant to an agreement in effect Approved Share Plan (as defined below) (it being expressly understood and agreed for all purposes of the date hereof; this Agreement that lawyers, law firms, accountants and accounting firms do not constitute consultants), provided that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities options is not lowered, none of such Convertible Securities options are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities options are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iiiB) shares of Common Stock issued upon the issuance conversion, exercise or exchange of securities Convertible Securities (other than standard options to employees, directors and other third parties under purchase Common Stock issued pursuant to an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately are covered by clause (A) above) issued prior to the date hereof, provided that the conversion, exercise or exchange (as the case may be) of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance of the such Convertible Notes, the Conversion Shares, the Warrants and the Warrant Shares.Security is made solely pursuant to
Appears in 1 contract
Sources: Securities Purchase Agreement (Biostar Pharmaceuticals, Inc.)
Additional Issuance of Securities. The Company agrees that during for the Restricted Periodperiod commencing on the Effective Date and ending on the sixtieth (60th) day after the date hereof, and subject to the last sentence of this Section 4(j) for the period commencing on the Second Closing Date and ending on the sixtieth (60th) day thereafter, neither the Company shall not nor any of its Subsidiaries shall, without the prior written consent of the Investor, (a) directly or indirectly indirectly, issue, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option option, right or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right warrant to purchase or other disposition of) otherwise transfer or dispose of any equity security share of Common Stock or any equity-linked securities convertible into or related security (including, without limitation, exercisable or exchangeable for Common Stock or file any “equity security” (as that term is defined under Rule 405 promulgated registration statement under the 1933 ActAct (other than a registration statement on Form S-8, a post-effective registration statement to terminate or amend an effective registration statement, a resale registration statement for shares issued in connection with an acquisition or other business combination, a shelf registration statement, or a registration statement on Form S-4, or a registration statement pursuant to Rule 462(b)) with respect to any of the foregoing, or (b) enter into any Convertible swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or transaction described in clauses (a) or (b) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise; provided, however, that nothing in the foregoing clauses (a) and (b) shall be construed as limiting the Company’s ability to negotiate and/or otherwise prepare to consummate a transaction following the expiration of the restricted period so long as such transaction is not publicly announced prior to the expiration of the restricted period. The provisions of this Section 4(j) shall not apply to (i) the Securities to be issued and sold hereunder or issuable upon conversion, exchange or exercise of the Securities, debt (ii) issuances of shares of Common Stock issuable upon conversion or exchange of currently outstanding convertible notes, (iii) issuances of shares of Common Stock upon the exercise or exchange of currently outstanding warrants or amendments to the warrant agreements related thereto, (iv) granting options or other securities under the Company’s incentive compensation plans existing on the date hereof or issuances of shares of Common Stock issuable in connection with outstanding awards thereunder as of the date hereof, (v) issuances of shares of Common Stock issuable pursuant to agreements in effect as of the date hereof or amendments related thereto, (vi) issuances of shares of Common Stock in connection with strategic acquisitions, (vii) issuance of common stock to fund tax withholding obligations related to equity)the vesting of outstanding incentive awards, any preferred stock or any purchase rights(viii) issuances of shares of Common Stock subject to shareholder approval; provided, however, that in the case of clauses (“Additional Issuance”)ii) and (iii) above, no shares of Common Stock shall be issued as a result of an amendment to such securities after the date hereof and prior to the expiration of the applicable restricted period. Notwithstanding the foregoing, this Section 4(j) shall not apply in respect of the following: (i) issuances pursuant if the Common Stock is trading at a price, on the 45th calendar day from the Second Closing Date, that is equal to, or greater than, 90% of the Closing Bid Price of the Common Stock on the Trading Day prior to acquisitionsthe Second Closing Date, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; or (ii) an issuance of shares of Common Stock issued upon if the conversion or exercise of Convertible Securities issued prior Investor does not deliver irrevocable funds to the date hereof or Convertible Securities that may be issued pursuant to an agreement Company in effect as the amount of the date hereof; provided that definitive terms Maximum Placement (i.e. a total of such Convertible Securities $40,000,000.00) within thirty (whether such Convertible Securities have been issued or will be issued30) have been disclosed in calendar days after the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; (iii) the issuance of securities to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant SharesSecond Closing Date.
Appears in 1 contract
Sources: Securities Purchase Agreement (Cell Therapeutics Inc)
Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the later of (x) ninety (90) calendar days after the Closing Date and (y) twenty (20) Trading Days after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible SecuritiesSecurities (as defined below), debt (with or related to equity)any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the following: issuance of (i) issuances shares of Common Stock or options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to acquisitionsan Approved Stock Plan (as defined below), joint venturesprovided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, license arrangementsin the aggregate, leasing arrangements exceed more than 10% of the Common Stock issued and similar transaction arrangementsoutstanding immediately prior to the date hereof and (2) the exercise price of any existing options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (nor is any provision of any such Convertible Securitiesi) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iii) the issuance of securities to employees, directors and other third parties under an Approved Share PlanWarrant Shares; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) shares of Common Stock and Convertible Securities issued pursuant to equipment strategic mergers or acquisitions of other assets or businesses, or strategic licensing or development transactions; provided that (x) the primary purpose of such issuance of the Convertible Notesis not to raise capital, the Conversion Shares, the Warrants and the Warrant Shares.(y) the
Appears in 1 contract
Sources: Securities Purchase Agreement (Patriot National, Inc.)
Additional Issuance of Securities. Until the termination of this Agreement, the Company will not, without the prior written consent of the Investor, issue any Common Shares or Common Share Equivalents (other than to the Investor as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Promissory Notes. The Company agrees that during for each period commencing on the date of this Agreement, through, and including, the date of termination of this Agreement (each, a “Additional Issuance Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly indirectly:
(a) file a registration statement under the Securities Act relating to securities that are not the Registrable Securities (other than a registration statement on Form S-4, Form S-8 or such supplements or amendments to registration statements that are outstanding and have been declared effective by the SEC as of the date of the Existing Agreement (including the Registration Statement) (solely to the extent necessary to keep such registration statements effective and available and not with respect to any Subsequent Placement)); or
(b) issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-equity- linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Securities Act)), any Convertible Securities, debt (with or related to equity)any debt, any preferred stock or any purchase rightsrights (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Additional Issuance Restricted Period or at any time thereafter) (is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j) shall not apply in respect of the following: (i) issuances pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities issued prior Excluded Securities.
(c) Notwithstanding anything to the date hereof contrary contained herein, while any Promissory Notes are outstanding, the Company agrees not to issue, sell, grant, or Convertible Securities that may be issued pursuant otherwise dispose of any securities, or enter into any agreement or arrangement to an agreement in effect as do so, at a price per security less than 120% of the date hereof; provided that definitive terms Floor Price (as defined in the Promissory Notes) on such date, or otherwise provide rights to acquire securities at an effective price per security below 120% of the Floor Price unless the proceeds of such Convertible Securities (whether transaction is used to fully redeem such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; (iii) the issuance of securities to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance of the Convertible outstanding Promissory Notes, the Conversion Shares, the Warrants and the Warrant Shares.
Appears in 1 contract
Sources: Equity Purchase Facility Agreement (New Era Helium Inc.)
Additional Issuance of Securities. The (i) Except as permitted under clause (ii) below, so long as the Incremental Warrant or any Notes remain outstanding, the Company agrees that during will not, without the Restricted Periodprior written consent of the Buyer, issue any Notes or Incremental Warrants (other than to the Buyer as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Incremental Warrant. In addition, the Company agrees that (x) so long as the Buyer beneficially owns any Securities, the Company will not issue or sell any shares of Common Stock or Convertible Securities (other than Excluded Securities (as defined below)), for a consideration per share less than a price equal to 120% of the Floor Price in effect immediately prior to such issue or sale and (y) for each period commencing on a Closing Date hereunder, through, and including, the twentieth (20th) Trading Day immediately following the date on which the SEC declares the Registration Statement effective registering the Registrable Securities issued and issuable in connection with such Closing (each, a “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly without the prior written consent of the Buyer in its sole discretion:
(1) file a registration statement under the Securities Act relating to securities that are not the Registrable Securities (other than a registration statement on Form S-4, Form S-8 or such supplements or amendments to registration statements that are outstanding and have been declared effective by the SEC as of the date hereof (including the Registration Statement) (solely to the extent necessary to keep such registration statements effective and available and not with respect to any Subsequent Placement)); or
(2) issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Securities Act)), any Convertible Securities, debt (with or related to equity), any preferred stock (“Capital Stock”) or any purchase rightsrights for any such Capital Stock (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) (is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j) shall not apply in respect of the following: issuance of (iA) issuances shares of Common Stock or options to purchase Common Stock issued to directors, officers or employees of the Company for services rendered to the Company in their capacity as such pursuant to acquisitionsan Approved Stock Plan (as defined below), joint venturesprovided that (x) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (A) do not, license arrangementsin the aggregate, leasing arrangements exceed more than 10% of the Common Stock issued and similar transaction arrangementsoutstanding immediately prior to the date hereof and (y) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects the Buyer; (iiB) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (A) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (A) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (nor is any provision of any such Convertible SecuritiesA) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (A) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any the Buyer; (iiiC) the issuance Securities; and (D) any shares of securities to employeesCommon Stock issued or issuable in connection with any acquisitions (whether by merger, consolidation, purchase of equity, purchase of assets, reorganization or otherwise), mergers, consolidations, or reorganizations approved by a majority of the disinterested directors and other third parties under an Approved Share Plan; of the Company, provided that provisions any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business complementary with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith (each of the foregoing in clauses (A) through (D), collectively the “Excluded Securities”). “Approved Share Plan that were in effect on Stock Plan” means any employee benefit plan which has been approved by the date immediately board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of this AgreementCommon Stock and standard options to purchase Common Stock may be issued to any employee, remain officer or director for services provided to the Company in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, their capacity as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Sharessuch.
Appears in 1 contract
Sources: Securities Purchase Agreement (Maison Solutions Inc.)
Additional Issuance of Securities. The Company agrees that during for the period commencing on the date hereof and ending on the date immediately following the one hundredth (100th) Trading Day (as defined in the Warrants) anniversary of the Applicable Date (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of or any option or right to purchase or other disposition of) any of their respective equity security or equity equivalent securities, including, without limitation, any equity-linked debt, preferred stock, rights, options, warrants or related security other instrument that is at any time and under any circumstances convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, capital stock and other securities of the Company (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under securities of the 1933 Act)Company or any Subsidiary which entitle the holder thereof to acquire Common Stock at any time, including without limitation, any Convertible Securitiesdebt, debt preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock or other securities that entitle the holder to receive, directly or indirectly, Common Stock) (collectively with or related to equity), any preferred such capital stock or any purchase rightsother securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the following: issuance of (i) issuances (A) shares of Common Stock (including shares of Common Stock issuable upon exercise of standard options to purchase Common Stock or standard warrants to purchase Common Stock) to directors, officers, the consultants expressly set forth on Schedule 4(k) attached hereto or employees of the Company, in each case, in their capacity as such pursuant to acquisitionsan Approved Share Plan (as defined below), joint venturesprovided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options and warrants) after the date hereof pursuant to this clause (A) do not, license arrangementsin the aggregate, leasing arrangements exceed more than 10% of the Common Stock issued and similar transaction arrangements; outstanding immediately prior to the date hereof and (ii2) an issuance neither such options nor warrants are amended to increase the number of shares issuable thereunder or to lower the exercise price thereof or to otherwise materially change the terms or conditions thereof in any manner that adversely affects any of the Buyers, (B) shares of Common Stock issued upon the conversion or exercise of Convertible Securities Equivalents issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms of such Convertible Securities (whether such Convertible Securities Equivalents have not been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to amended since the date of this Agreement, the conversion or exercise price of any such Convertible Securities is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) Agreement to increase the number of shares issuable thereunder and none of or to lower the exercise or conversion price thereof or otherwise materially change the terms or conditions of any such Convertible Securities are otherwise materially changed or waived (whether by the Company or the holder thereof) thereof in any manner that adversely affects any Buyer; of the Buyers, (iiiC) the issuance Conversion Shares and (D) the Warrant Shares (each of securities the foregoing in clauses (A) through (D), collectively the “Excluded Securities”) or (ii) up to employees400,000 shares of Common Stock in the aggregate to ▇▇▇▇▇▇ ▇▇▇▇▇, directors LLP and other third parties under an ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. in consideration for legal services provided to the Company, provided that the Company shall not issue more than 50,000 of such 400,000 shares in the aggregate in any calendar month. “Approved Share Plan; provided that provisions ” means any employee benefit plan which has been approved by the board of such Approved Share Plan that were in effect on directors of the date immediately Company prior to or subsequent to the date hereof pursuant to which shares of this AgreementCommon Stock and standard options to purchase Common Stock may be issued to any employee, remain officer or director for services provided to the Company in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, their capacity as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Sharessuch.
Appears in 1 contract
Sources: Securities Purchase Agreement (Magnum dOr Resources Inc)
Additional Issuance of Securities. The Without the prior written consent of the Required Significant Buyers (as defined below) (which may be granted or withheld in the sole discretion of the Required Significant Buyers), the Company agrees that for the period commencing on the date hereof and ending on the date immediately following the one hundred eighty (180) day anniversary of the Applicable Date (provided that such period shall be extended by the number of days during such period and any extension thereof contemplated by this proviso on which the Registration Statement is not effective or any prospectus contained therein is not available for use) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt (with or related to equity)any debt, any preferred stock or any purchase rightsrights (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) (is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the following: issuance of:
(iA) issuances shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to acquisitionsan Approved Share Plan (as defined below), joint venturesprovided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (A) do not, license arrangementsin the aggregate, leasing arrangements exceed more than 488,405 shares of Common Stock (as adjusted for stock splits, stock combinations and other similar transaction arrangements; transactions occurring after the date of this Agreement) and (ii2) an issuance the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers;
(B) shares of Common Stock issued upon the conversion or exercise of of, or otherwise on account of, Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) is not lowered, none of such Convertible Securities are (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase, or which results in an increase in, the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; of the Buyers;
(iiiC) warrants to purchase up to 50,000 shares of Common Stock in the aggregate to Hayden IR, LLC pursuant to, and in accordance with, the terms of that certain Investor Relations Consulting Agreement, dated as of April 1, 2012, by and between Hayden IR, LLC and the Company and such 50,000 shares of Common Stock upon exercise thereof provided that (1) the issuance exercise of securities such warrants is made solely pursuant to employees, directors and other third parties under an Approved Share Plan; provided that the exercise provisions of such Approved Share Plan warrants that were in effect on the date immediately prior of original issuance thereof, (2) the exercise price of such warrants is not lowered, (3) none of such warrants are (nor is any provision of any such warrants) amended or waived in any manner (whether by the Company or the holder thereof) to increase, or which results in an increase in, the date number of this Agreement, remain in effect without amendment shares issuable thereunder and (4) none of the terms or conditions of any such warrants are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer, including any amendment to increase of the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and Buyers;
(ivD) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and Warrants;
(E) the Warrant Shares; and
(F) shares of Common Stock issued in connection with strategic mergers and acquisitions, provided that (I) the primary purpose of such issuance is not to raise capital, (II) the acquirer of such shares of Common Stock in such issuance solely consists of either (1) the actual owners of such assets or securities acquired in such merger or acquisition or (2) the stockholders, partners or members of the foregoing Persons, (III) the number or amount (as the case may be) of such shares of Common Stock issued to each such Person by the Company shall not be disproportionate to such Person’s actual ownership of such assets or securities to be acquired by the Company (as applicable) and (IV) all such issuances of Common Stock after the date hereof pursuant to this clause (F) do not, in the aggregate, exceed more than 976,810 shares of Common Stock (adjusted for stock splits, stock combinations and other similar transactions occurring after the date of this Agreement) (each of the foregoing in clauses (A) through (F), collectively the “Excluded Securities”).
Appears in 1 contract
Sources: Securities Purchase Agreement (Lightpath Technologies Inc)
Additional Issuance of Securities. (i) The Company agrees that during for the period commencing on the date hereof and ending on the date immediately following the 90th calendar day after each Closing Date (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or register or amend any outstanding registration statements or file any shelf registration statements or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act)), any Convertible Securities, debt (with or related to equity), any preferred stock or any purchase rights) (“Additional Issuance”). Notwithstanding the foregoing, this Section 4(j4(j)(i) shall not apply during the Restricted Period in respect of the following: issuance of (i) issuances Options, Convertible Securities, restricted stock award or units or performance stock awards or units issued under any Approved Stock Plan (as defined below) (collectively, “Incentive Grants”), provided that (1) the aggregate number of shares issued and issuable pursuant to acquisitionssuch Incentive Grants during the Restricted Period does not exceed 5% of the Common Stock issued and outstanding immediately prior to the date hereof and (2) the exercise price of any such options is not lowered, joint ventures, license arrangements, leasing arrangements none of such options are amended to increase the number of shares issuable thereunder and similar transaction arrangementsnone of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) an issuance of shares of Common Stock issued upon the conversion conversion, exercise, or exercise settlement of (or otherwise pursuant to the terms of) Convertible Securities (other than standard Incentive Grants that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard Incentive Grants that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (nor is any provision of any such Convertible Securitiesi) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock or other incentive equity awards issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iii) shares of the issuance Company’s capital stock issuable pursuant to shareholder rights plans; (iv) shares of securities Common Stock issued as matching contributions under the Company’s 401(k) plan; (v) shares of Common Stock issued by the Company at a per share price greater than one hundred fifty percent (150%) of the Conversion Price, (vi) the Underlying Shares; (vii) shares of Common stock issued pursuant to employeesan agreement entered into by the Company, directors with the express prior written consent of the Required Holders, providing for an equity line of credit (an “Equity Line of Credit”); and other third parties under (viii) shares of Common stock pursuant to an ATM Sales Program. “Approved Share Stock Plan; provided that provisions ” means any stock option plans, equity incentive plans or employee benefit plans which have been approved by the Board of such Approved Share Plan that were in effect on Directors of the date immediately Company prior to or subsequent to the date hereof pursuant to which shares of this AgreementCommon Stock and standard options to purchase Common Stock, remain restricted stock and other incentive equity awards may be issued to any employee, officer, consultant or director for services provided to the Company in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, their capacity as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Sharessuch.
Appears in 1 contract
Sources: Securities Purchase Agreement (Workhorse Group Inc.)
Additional Issuance of Securities. The Company agrees that during for the Restricted Periodperiod commencing on the date hereof and ending on the thirtieth (30th) day after the date hereof, neither the Company shall not nor any of its Subsidiaries shall, without the prior consent of the Purchasers, (i) directly or indirectly indirectly, issue, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option option, right or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right warrant to purchase or other disposition of) otherwise transfer or dispose of any equity security share of Common Stock or any equity-linked securities convertible into or related security (including, without limitation, exercisable or exchangeable for Common Stock or file any “equity security” (as that term is defined under Rule 405 promulgated registration statement under the 1933 Act), Act (other than a Registration Statement on Form S-8) with respect to any Convertible Securities, debt (with or related to equity), any preferred stock or any purchase rights) (“Additional Issuance”). Notwithstanding of the foregoing, or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise; provided, however, that nothing in the foregoing clauses (i) and (ii) shall be construed as limiting the Company’s ability to negotiate and/or otherwise prepare to consummate a transaction following the expiration of the restricted period so long as such transaction is not publicly announced prior to the expiration of the restricted period. The provisions of this Section 4(j) 4.13 shall not apply in respect to (A) the Securities to be issued and sold hereunder or issuable upon conversion or exercise of the following: Securities, (iB) issuances pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an issuance of shares of Common Stock issued upon the exercise of the ▇▇▇▇▇▇ Warrants, (C) issuances of shares of Common Stock issuable upon conversion or exchange of currently outstanding convertible notes, (D) issuances of shares of Common Stock upon the exercise of Convertible Securities issued prior currently outstanding warrants or amendments to the warrant agreements related thereto, (E) granting options or other securities under the Company’s incentive compensation plans existing on the date hereof or Convertible Securities that may be issued issuances of shares of Common Stock issuable in connection with outstanding awards thereunder as of the date hereof, (F) issuances of shares of Common Stock issuable pursuant to an agreement agreements in effect as of the date hereofhereof or amendments related thereto, (G) issuances of shares of Common Stock in connection with strategic acquisitions, or (H) issuances of shares of Common Stock subject to shareholder approval; provided provided, however, that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; andcase of clauses (C) and (D) above, provided further that the conversion or exercise (no shares of Common Stock shall be issued as the case may be) a result of any an amendment to such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on securities after the date immediately hereof and prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none expiration of the terms or conditions of any such Convertible Securities are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; (iii) the issuance of securities to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Sharesrestricted period.
Appears in 1 contract
Sources: Securities Purchase Agreement (Cell Therapeutics Inc)
Additional Issuance of Securities. The Company agrees that during for the period commencing on the date hereof and ending on the date immediately following the 30th Trading Days after the Closing Date (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Securities Act), any Convertible Securities, debt Securities (with or related to equityas defined below), any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j) 7.10 shall not apply in respect of the following: issuance of (i) issuances shares of Common Stock, restricted shares of Common Stock, restricted stock units or standard stock options to purchase Common Stock or other standard equity linked securities to directors, officers or employees of the Company in their capacity as such pursuant to acquisitionsan Approved Stock Plan (as defined below), joint venturesprovided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options or vesting of restricted stock or restricted stock units or other equity linked securities) after the date hereof pursuant to this clause (i) do not, license arrangementsin the aggregate, leasing arrangements exceed more than 5% of the Common Stock issued and similar transaction arrangementsoutstanding immediately prior to the date hereof and (2) the exercise price of any stock options is not lowered, none of such stock options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such stock options are otherwise materially changed in any manner that adversely affects the Holder; (ii) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard stock options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard stock options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (nor is any provision of any such Convertible Securitiesi) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerthe Holder; or (iii) the issuance of securities to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and New Securities (iv) the issuance each of the Convertible Notesforegoing in clauses (i) through (iii), collectively the Conversion Shares, the Warrants and the Warrant Shares.“Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been
Appears in 1 contract
Additional Issuance of Securities. The Company agrees that during the Restricted PeriodSo long as any Buyer beneficially owns any Securities, the Company shall not, without the prior written consent of the Required Holders (as defined below), issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes. Unless otherwise agreed upon in writing by the Buyers, for the period commencing on the date hereof and ending on the date immediately following the forty-fifth (45th) calendar day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any registration statement is not effective or any prospectus contained therein is not available for use) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option Option or right to purchase, or otherwise dispose of (of, or announce any issuance, offer, sale, grant of any option Option or right to purchase or other disposition of) , any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Securities Act), any stock or other security (other than Options) that is, at any time and under any circumstances, directly or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any shares of Common Stock (collectively, “Convertible Securities”), debt (with or related to equity)any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement, whether occurring during the Restricted Period or at any time thereafter, is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the following: issuance of (i) issuances shares of Common Stock or standard Options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to acquisitionsan Approved Stock Plan (as defined below), joint venturesprovided that (A) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such Options) after the date hereof pursuant to this clause do not, license arrangementsin the aggregate, leasing arrangements exceed more than five percent (5%) of the Common Stock issued and similar transaction arrangementsoutstanding immediately prior to the date hereof, and (B) the exercise price of any such Options is not lowered, none of such Options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities or Options (other than standard Options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security or Option is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security or Option that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this AgreementSubscription Date, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities or Options (other than standard Options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities or Options (other than standard Options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (nor is any provision of any such Convertible Securitiesi) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities or Options (other than standard Options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iii) the issuance of Conversion Shares; (iv) securities issued pursuant to employeesacquisitions, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreementdivestitures, remain in effect without amendment in any manner that adversely affects any Buyerlicenses, including any amendment to increase the number of shares issuable thereunderpartnerships, except for the proposal included in collaborations or strategic transactions approved by the Company’s preliminary proxy statement filed board of directors or a majority of the members of a committee of directors established for such purpose, which acquisitions, divestitures, licenses, partnerships, collaborations or strategic transactions can have a Variable Rate Transaction (as defined below) component, provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an asset in a business synergistic with the SEC on December 30business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, 2024 but shall not include a transaction in which the Company is issuing securities primarily for the annual stockholder meeting purpose of raising capital or to increase an entity whose primary business is investing in securities; (v) any issuances or sales of Common Stock made on or following the number Subscription Date pursuant to the terms of that certain Common Stock Purchase Agreement, dated March 25, 2022, by and between the Company and Tumim Stone Capital LLC (each of the foregoing in clauses (i) through (v), collectively the “Excluded Securities”); and, (vi) subject to the Company’s compliance with Section 8 of the Note (including, without limitation, the issuances of Subsequent Warrants (as defined in the Note) to the Buyers in connection therewith as required thereunder, if applicable), any bone fide public offering of Common Stock and/or Options of the Company. “Approved Stock Plan” means any stock incentive plan or other employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the Subscription Date, which provides for the grant of equity awards to any employee, officer or director for services provided to the Company in their capacity as such. “Variable Rate Transaction” means a transaction in which the Company or any Subsidiary (1) issues or sells any Convertible Securities or Options either (x) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares issuable under of Common Stock at any time after the 2022 Equity Incentive Plan, as amended, and (iv) the initial issuance of such Convertible Securities or Options, or (y) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such Convertible NotesSecurities or Options 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, other than pursuant to a customary “weighted average” anti-dilution provision, or (2) enters into any agreement (including, without limitation, an equity line of credit or an “at-the-market” offering) whereby the Conversion SharesCompany or any Subsidiary may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights). Each Buyer shall be entitled to obtain injunctive relief against the Company and its Subsidiaries to preclude any such issuance, the Warrants and the Warrant Shareswhich remedy shall be in addition to any right to collect damages.
Appears in 1 contract
Sources: Securities Purchase Agreement (Super League Gaming, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Note or Warrants, the Company will not, without the prior written consent of the Required Holders, directly or indirectly, issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 45th day after the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant enter into any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt (with or related to equity), any preferred stock or any purchase rights) (“Additional Issuance”)Subsequent Placement. Notwithstanding the foregoing, this Section 4(j) 4.15 shall not apply in respect of the following: issuance of (i) issuances pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an issuance of shares of Common Stock issued or issuable to directors, officers, employees or other service providers of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such awards) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 5% of the shares of Common Stock issued and outstanding immediately prior to the date hereof and (2) the exercise price of any such options is not lowered and none of such options are amended to increase the number of shares issuable thereunder or extend the term of such options; (ii) shares of Common Stock issued or issuable upon the conversion or exercise of Convertible Securities (other than shares of Common Stock issued or issuable pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard options to purchase shares of Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than those issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that materially adversely affects any Buyerof the Buyers; (iii) the issuance Securities and any other securities issued or issuable pursuant to this Agreement or any of the Transaction Documents, and (vi) securities to employeesissued as consideration for the acquisition of another entity by the Company by merger, directors and purchase of substantially all of the assets or other third parties under an Approved Share Plan; reorganization or bona fide joint venture agreement, provided that provisions such issuance is approved by the majority of the disinterested directors of the Company and provided that such Approved Share Plan securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that were require or permit the filing of any registration statement in effect on connection therewith during the date Restricted Period and such issuance does not, in the aggregate, exceed more than 5% of the shares of Common Stock issued and outstanding immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and hereof (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Shares.each of
Appears in 1 contract
Sources: Securities Purchase Agreement (Nuvve Holding Corp.)
Additional Issuance of Securities. The Company agrees that during for the period commencing on the date hereof and ending on the date immediately following the forty-five (45) Trading Day anniversary of the Applicable Date (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of or any option or right to purchase or other disposition of) any of their respective equity security or equity equivalent securities, including, without limitation, any equity-linked debt, preferred stock, rights, options, warrants or related security other instrument that is at any time and under any circumstances convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, capital stock and other securities of the Company (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under securities of the 1933 Act)Company or any Subsidiary which entitle the holder thereof to acquire Common Stock at any time, including without limitation, any Convertible Securitiesdebt, debt preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock or other securities that entitle the holder to receive, directly or indirectly, Common Stock) (collectively with or related to equity), any preferred such capital stock or any purchase rightsother securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j) 00 shall not apply in respect of the following: issuance of (iA) issuances shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to acquisitionsan Approved Share Plan, joint venturesprovided that all such issuances after the date hereof pursuant to this clause (A) do not, license arrangementsin the aggregate, leasing arrangements exceed more than 5% of the Common Stock issued and similar transaction arrangements; outstanding immediately prior to the date hereof, (iiB) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities Equivalents issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms of such Convertible Securities (whether such Convertible Securities Equivalents have not been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to amended since the date of this Agreement, the conversion or exercise price of any such Convertible Securities is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) Agreement to increase the number of shares issuable thereunder and none of or to lower the exercise or conversion price thereof or otherwise materially change the terms or conditions of any such Convertible Securities are otherwise materially changed or waived (whether by the Company or the holder thereof) thereof in any manner that adversely affects any Buyer; of the Buyers, (iiiC) shares of Common Stock and standard warrants to purchase Common Stock as equity kickers in connection with bona fide lending transactions involving only non-convertible debt, the issuance primary purpose of securities which is not to employeesraise capital, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were which are approved in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in good faith by the Company’s preliminary proxy statement filed with Board of Directors, provided that all such issuances after the SEC on December 30date hereof pursuant to this clause (C) do not, 2024 in the aggregate, exceed 850,610 shares of Common Stock (including, without limitation, shares of Common Stock issuable upon exercise of such standard warrants) (adjusted for stock splits, combinations and the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Planlike), as amended, and (ivD) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Shares., (E) the
Appears in 1 contract
Additional Issuance of Securities. The Company agrees that during for the Restricted Periodperiod commencing on the date hereof and ending on the date immediately following the tenth (10th) calendar day after the Closing Date, neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Securities Act), any Convertible Securities, debt (with or related to equity), any preferred stock or any purchase rights) (“Additional Issuance”). Notwithstanding the foregoing, this Section 4(j4(f) shall not apply in respect of the following: issuance of (iA) issuances shares of Common Stock or standard options to purchase Common Stock to directors, officers, employees, or consultants of the Company in their capacity as such pursuant to acquisitionsan Approved Stock Plan (as defined below), joint venturesprovided that the exercise price of any such options is not lowered, license arrangements, leasing arrangements none of such options are amended to increase the number of shares issuable thereunder and similar transaction arrangementsnone of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects the Investor; (iiB) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities (as defined below) (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (A) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (A) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (nor is any provision of any such Convertible SecuritiesA) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (A) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerthe Investor; (iiiC) the issuance Securities, and (D) sales of securities Common Stock pursuant to employeesthe Purchase Agreement, as may be mutually agreed with Investor. “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately Company prior to or subsequent to the date hereof pursuant to which shares of this AgreementCommon Stock and standard options to purchase Common Stock may be issued to any employee, remain consultant, officer or director for services provided to the Company in effect without amendment in their capacity as such. “Convertible Securities” means any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance capital stock or other security of the Convertible NotesCompany or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the Conversion Sharesholder thereof to acquire, any capital stock or other security of the Warrants and the Warrant SharesCompany (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holder (as defined below), issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that (i) would cause a breach or default under the Notes or (ii) have a price per share (calculated in accordance with Section 7(a) of the Notes) below less than 120% of the then-current Floor Price or the Adjusted Floor Price (each as defined in the Notes), as applicable. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 20th Trading Day after the later of (i) the most recent date of issuance of any of the Notes or the Incremental Notes and (ii) the date on which the Registration Statement (as defined in the Registration Rights Agreement) becomes effective and the prospectus contained therein is available for use (the “Registration Effectiveness Date”) (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not file a registration statement under which it proposes to directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt (with or related to equity)any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the following: (i) issuances pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; provided that definitive terms of such Convertible any Excluded Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed as defined in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; (iii) the issuance of securities to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Shares).
Appears in 1 contract
Sources: Securities Purchase Agreement (La Rosa Holdings Corp.)
Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the ninety (90) day anniversary of the Initial Closing Date (provided that such period shall be extended by the number of days during such period and any extension thereof contemplated by this proviso on which each Registration Statement is not effective or any prospectus contained therein is not available for use) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt (with or related to equity)any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the following: issuance of (iA) issuances shares of Common Stock, Options (as defined in the Warrant), stock appreciation rights, restricted shares of Common Stock, restricted stock units and other stock-based awards to directors, officers, employees or consultants of the Company or any of its Subsidiaries in their capacity as such pursuant to acquisitionsan Approved Stock Plan (as defined below), joint venturesprovided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (A) do not, license arrangementsin the aggregate, leasing arrangements exceed 25 million shares of Common Stock and similar transaction arrangements(2) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiB) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities issued prior (other than options to the date hereof or Convertible Securities that may be purchase Common Stock issued pursuant to an agreement in effect as of Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof; provided that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities (other than options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (nor is any provision of any such Convertible Securitiesi) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iiiC) the shares of Common Stock issuable upon conversion of the Notes or otherwise pursuant to the terms of the Notes, (D) the shares of Common Stock issuable upon exercise of the Warrants and (E) shares of Common Stock or Convertible Securities issued or issuable in connection with strategic alliances, acquisitions, mergers, and strategic partnerships, provided, that (1) the primary purpose of such issuance is not to raise capital, (2) the purchaser or acquirer of the securities in such issuance solely consists of either (x) the actual participants in such strategic alliance or strategic partnership, (y) the actual owners of such assets or securities acquired in such acquisition or merger or (z) the stockholders, partners or members of the foregoing Persons and (3) the number or amount of securities issued to employees, directors and other third parties under an Approved Share Plan; provided that provisions such Person by the Company shall not be disproportionate to such Person’s actual participation in such strategic alliance or strategic partnership or ownership of such assets or securities to be acquired by the Company, as applicable(each of the foregoing in clauses (A) through (E) collectively the “Excluded Securities”). “Approved Share Plan that were in effect on Stock Plan” means any employee benefit plan which has been approved by the date immediately board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of this AgreementCommon Stock and options, remain in effect without amendment in any manner that adversely affects any Buyerstock appreciation rights, including any amendment to increase the number restricted shares of shares issuable thereunderCommon Stock, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amendedrestricted stock units, and other stock based awards may be issued to any employee, officer, director or consultant for services provided to the Company in their capacity as such. “Convertible Securities” means any stock or other security (ivother than Options) that is at any time and under any circumstances, directly or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the issuance holder thereof to acquire, any shares of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant SharesCommon Stock.
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns a Note, the Company will not, without the prior written consent of the Required Holders (as defined below), issue any notes of the same series and the Company shall not issue any other securities that would cause a breach or default under the Notes. The Company agrees that during for the period commencing on the date hereof and ending immediately following the 90th calendar day after the Closing Date (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt Securities (with or related to equityas defined below), any preferred stock or any equity purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) other than to the Buyers as contemplated hereby is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(i) shall not apply in respect of the following: issuance of (i) issuances shares of Common Stock, restricted stock units, standard options to purchase Common Stock or other equity awards (and any shares of Common Stock issued upon exercise or settlement thereof) to directors, officers, consultants or employees of the Company in their capacity as such pursuant to acquisitionsan Approved Stock Plan (as defined below), joint venturesprovided that the exercise price of any such options is not lowered, license arrangements, leasing arrangements none of such options are amended to increase the number of shares issuable thereunder and similar transaction arrangementsnone of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) an issuance of shares of Common Stock or other securities issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) except pursuant to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; (iii) the issuance of securities to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan thereof that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that adversely affects any Buyer, including any amendment are covered by clause (i) above) are amended to increase the number of shares issuable thereunder, except for pursuant to the proposal included terms thereof that were in effect on the date immediately prior to the date of this Agreement, and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers, except pursuant to the terms thereof that were in effect on the date immediately prior to the date of this Agreement; (iii) the Conversion Shares; (iv) securities to affiliates of the Company or to any entities affiliated with members of the Board of Directors of the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and ; (ivv) the issuance of equity securities or any equity-linked debt for net proceeds of up to $200 million and (vi) any shares of Common Stock or Convertible Securities issued or issuable in connection with strategic or commercial alliances, acquisitions, mergers, and strategic partnerships, provided, that (x) the primary purpose of such issuance is not to raise capital as reasonably determined, (y) the purchaser or acquirer of the securities in such issuance solely consists of either (A) the actual participants in such strategic or commercial alliance or strategic or commercial partnership, (B) the actual owners of such assets or securities acquired in such acquisition or merger or (C) the stockholders, partners or members of the foregoing Persons, in each case, which is, itself or through its subsidiaries, an operating company or an owner of an asset, in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, and (z) the number or amount of securities issued to such Persons by the Company shall not be disproportionate to each such Person’s actual participation in such strategic or commercial alliance or strategic or commercial partnership or ownership of such assets or securities to be acquired by the Company, as applicable. “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock, restricted stock units, standard options to purchase Common Stock and other equity awards may be issued to any employee, consultant, officer or director for services provided to the Company in their capacity as such. “Convertible NotesSecurities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the Conversion Sharesholder thereof to acquire, any capital stock or other security of the Warrants and the Warrant SharesCompany (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the ninety (90) day anniversary of the Applicable Date (provided that such period shall be extended by the number of days during such period and any extension thereof contemplated by this proviso on which the Registration Statement is not effective or any prospectus contained therein is not available for use) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act)), any Convertible Securities, debt (with or related to equity)any debt, any preferred stock or any purchase rightsrights (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) (is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the following: issuance of (iA) issuances shares of Common Stock or options to purchase Common Stock or other equity awards (but which shall not include any Options (as defined in the Warrants) (other than standard options to purchase Common Stock issued to directors, officers or employees of the Company or any of its Subsidiaries in their capacity as such, and warrants and standard options to purchase Common Stock issued to consultants or advisors providing services to the Company or any of its Subsidiaries in their capacity as such so long as such warrants do not contain any terms or conditions more favorable than any of the terms or conditions contained in the Warrants) or any Convertible Securities) issued to directors, officers, employees of, or consultants or advisors to, the Company or its Subsidiaries in their capacity as such pursuant to acquisitionsan Approved Share Plan (as defined below) (it being expressly understood and agreed for all purposes of this Agreement that lawyers, joint ventureslaw firms, license arrangementsaccountants and accounting firms do not constitute consultants or advisors), leasing arrangements provided that the exercise price of any such options or such other equity awards is not lowered, none of such options or such other equity awards are amended to increase the number of shares issuable thereunder and similar transaction arrangementsnone of the terms or conditions of any such options or such other equity awards are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiB) an issuance of shares of Common Stock issued upon the conversion conversion, exercise or exercise exchange of Convertible Securities (other than options to purchase Common Stock or such other equity awards issued pursuant to an Approved Share Plan that are covered by clause (A) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued the conversion, exercise or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise exchange (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise exchange (as the case may be) provisions of such Convertible Security that were in effect (or disclosed and expressly set forth in the SEC Documentssuch Convertible Security) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise exchange price of any such Convertible Securities (other than options to purchase Common Stock or such other equity awards issued pursuant to an Approved Share Plan that are covered by clause (A) above) is not lowered, none of such Convertible Securities are (other than options to purchase Common Stock or such other equity awards issued pursuant to an Approved Share Plan that are covered by clause (A) above) (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase, or which results in an increase in, the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than options to purchase Common Stock or such other equity awards issued pursuant to an Approved Share Plan that are covered by clause (A) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iiiC) the issuance Warrants; (D) the Warrant Shares and (E) shares of securities to employeesCommon Stock issued in connection with acquisitions, directors asset purchases, licenses, collaborations or strategic transactions involving the Company and other third parties under Persons approved by the Company’s board of directors; provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the current business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, and shall not include a transaction in which the Company is issuing Common Stock or any other security primarily for the purpose of raising capital or to an entity whose primary business is investing in securities (each of the foregoing in clauses (A) through (E), collectively the “Excluded Securities”). “Approved Share Plan; provided that provisions ” means any employee benefit plan has been approved by the board of such Approved Share Plan that were directors of the Company pursuant to which shares of Common Stock and options to purchase Common Stock and other equity awards (but which shall not include any Options (other than standard options to purchase Common Stock issued to directors, officers or employees of the Company or any of its Subsidiaries in effect on the date immediately prior their capacity as such, and warrants and standard options to purchase Common Stock issued to consultants or advisors providing services to the date Company or any of this Agreement, remain its Subsidiaries in effect without amendment in their capacity as such so long as such warrants do not contain any manner that adversely affects terms or conditions more favorable than any Buyer, including any amendment to increase of the number of shares issuable thereunder, except for the proposal included terms or conditions contained in the Company’s preliminary proxy statement filed with Warrants) or any Convertible Securities) may be issued to any employee, officer or director of, or consultants or advisors to, the SEC on December 30Company or any of its Subsidiaries for services provided to the Company or any of its Subsidiaries in their capacity as such. “Convertible Securities” means any capital stock, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plannote, as amended, and (iv) the issuance debenture or other security of the Convertible NotesCompany or any of its Subsidiaries that is, or may become, at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the Conversion Sharesholder thereof to acquire, any capital stock, note, debenture or other security of the Warrants and the Warrant SharesCompany (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Sources: Securities Purchase Agreement (Arch Therapeutics, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders (as defined below), issue any Preferred Shares (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Certificate of Designation. The Company agrees that for the period commencing on the date hereof and ending on the date occurring 30 days immediately following the initial date of the effectiveness of each Registration Statement covering the resale of all of the Securities (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) and during any Alternate Conversion Measuring Period (as defined in the Certificate of Designation) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible SecuritiesSecurities (as defined below), debt (with or related to equity)any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the following: (i) issuances pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; provided that definitive terms of such Convertible Excluded Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed as defined in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) Certificate of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities is not lowered, none of such Convertible Securities are (nor is any provision of any such Designation). “Convertible Securities) amended ” means any capital stock or waived in any manner (whether by other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof) thereof to increase the number of shares issuable thereunder and none acquire, any capital stock or other security of the terms Company (including, without limitation, Common Stock) or conditions any of any such Convertible Securities are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; (iii) the issuance of securities to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Sharesits Subsidiaries.
Appears in 1 contract
Sources: Securities Purchase Agreement (Asset Entities Inc.)
Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the sixty (60) day anniversary of the Applicable Date (provided that such period shall be extended by the number of days during such period and any extension thereof contemplated by this proviso on which the Registration Statement (as defined in the Registration Rights Agreement) is not effective or any prospectus contained therein is not available for use)(the “Restricted Period”), neither the Company nor any of its subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Securities Act)), any Convertible Securities, debt (with or related to equity)any debt, any preferred stock or any purchase rightsrights (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) (is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j12(a) shall not apply in respect of the following: issuance of (iA) issuances shares of Common Stock or options to purchase Common Stock or other equity awards issued to directors, officers, employees of, or consultants or advisors to, the Company or its subsidiaries in their capacity as such pursuant to acquisitionsan Approved Share Plan (it being expressly understood and agreed for all purposes of this Subscription Agreement that lawyers, joint ventureslaw firms, license arrangementsaccountants and accounting firms do not constitute consultants or advisors), leasing arrangements provided that the exercise price of any such options or such other equity awards is not lowered, none of such options or such other equity awards are amended to increase the number of shares issuable thereunder and similar transaction arrangementsnone of the terms or conditions of any such options or such other equity awards are otherwise materially changed in any manner that adversely affects the Purchaser or any other Person subscribing for Units in the Offering (collectively, the “Investors” and each such Person, an “Investor”); (iiB) an issuance of shares of Common Stock issued upon the conversion conversion, exercise or exercise exchange of Convertible Securities (other than options to purchase Common Stock or such other equity awards issued pursuant to an Approved Share Plan that are covered by clause (A) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued the conversion, exercise or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise exchange (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise exchange (as the case may be) provisions of such Convertible Security that were in effect (or disclosed and expressly set forth in the SEC Documentssuch Convertible Security) on the date immediately prior to the date of this Subscription Agreement, the conversion conversion, exercise or exercise exchange price of any such Convertible Securities (other than options to purchase Common Stock or such other equity awards issued pursuant to an Approved Share Plan that are covered by clause (A) above) is not lowered, none of such Convertible Securities are (nor other than options to purchase Common Stock or such other equity awards issued pursuant to an Approved Share Plan that are covered by clause (A) above)(nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase, or which results in an increase in, the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than options to purchase Common Stock or such other equity awards issued pursuant to an Approved Share Plan that are covered by clause (A) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Purchasers; (iiiC) the issuance Warrants; (D) the Warrant Shares; (E) shares of securities to employeesCommon Stock issued in connection with acquisitions, directors asset purchases, licenses, collaborations or strategic transactions involving the Company and other third parties under Persons approved by the Company’s board of directors; provided that any such issuance shall only be to Strategic Entity and shall provide to the Company additional benefits in addition to the investment of funds, and shall not include a transaction in which the Company is issuing Common Stock or any other security primarily for the purpose of raising capital or to an entity whose primary business is investing in securities; and (F) shares of Common Stock issued to a Stategic Entity; provided that the Company’s board of directors reasonable determines that such issuance shall provide to the Company additional benefits in addition to the investment of funds (each of the foregoing in clauses (A) through (F), collectively the “Excluded Securities”). For purposes of this Subscription Agreement, (1) “Applicable Date” means the first date on which the resale by the Investors of all Registrable Securities (as defined in the Registration Rights Agreement) is covered by one or more effective Registration Statements (and each prospectus contained therein is available for use on such date); (2) “Approved Share Plan; ” means any employee benefit plan has been approved by the board of directors of the Company pursuant to which shares of Common Stock and options to purchase Common Stock and other equity awards may be issued to any employee, officer or director of, or consultants or advisors to, the Company or any of its subsidiaries for services provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date Company or any of this Agreementits subsidiaries in their capacity as such including, remain in effect without amendment in any manner that adversely affects any Buyerbut not limited to, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed 2013 Stock Incentive Plan; (3) “Convertible Securities” means any capital stock, note, debenture or other security of the Company or any of its subsidiaries that is, or may become, at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock, note, debenture or other security of the Company (including, without limitation, Common Stock) or any of its subsidiaries; and (4) “Strategic Entity” means a Person which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance current business of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant SharesCompany.
Appears in 1 contract
Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the ninetieth (90th) day anniversary of the date hereof (provided that such period shall be extended by the number of days during such period and any extension thereof contemplated by this proviso on which the Registration Statement is not effective or any prospectus contained therein is not available for use) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity Common Stock or any security or any debt or other instrument convertible or exchangeable or exercisable into Common Stock or which constitutes (or would constitute but for lack of a fixed exercise or conversion or similar price or if it were not solely cash settled) a “derivative security” (as defined under the rules and regulations under Section 16 of the ▇▇▇▇ ▇▇▇) or otherwise an equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), ▇▇▇▇ ▇▇▇) or which does or would otherwise constitute any Option or Convertible Securities, debt Security (with or related to equity), any preferred stock or any purchase rightsas defined in the Warrants) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, the immediately preceding sentence in this Section 4(j) shall not apply in respect of the following: (i) issuances pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an issuance of (A) shares of Common Stock issued or standard options to purchase Common Stock or other standard equity linked securities (e.g., stock appreciation rights) to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Share Plan (as defined below), provided that (1) all such issuances (taking into account the shares of Common Stock issuable upon the conversion or exercise of Convertible Securities issued prior to such options) after the date hereof or Convertible Securities that may be issued pursuant to an agreement this clause (A) do not, in effect as the aggregate, exceed more than 2% of the date hereof; provided that definitive terms shares of such Convertible Securities Common Stock and (whether such Convertible Securities have been issued or will be issued2) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities options is not lowered, none of such Convertible Securities options are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities options are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iiiB) shares of Common Stock issued upon the issuance conversion or exercise of securities Convertible Securities (other than standard options to employees, directors and other third parties under purchase Common Stock issued pursuant to an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately are covered by clause (A) above) issued prior to the date hereof, provided that the conversion price of this Agreement, remain in effect without amendment in any manner such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that adversely affects any Buyer, including any amendment to increase are covered by clause (A) above) is not lowered beyond the number of shares issuable thereunder, except for price determined by the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Shares.anti-dilution provision in
Appears in 1 contract
Sources: Securities Purchase Agreement (Geoglobal Resources Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Preferred Shares (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Certificate of Designations or the Common Warrants. The Company agrees that during for the period commencing on the date hereof and ending on the date immediately following the 120th calendar day after the Closing Date (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” Convertible Securities (as that term is defined under Rule 405 promulgated under the 1933 Actbelow), any Convertible Securities, debt (with or related to equity)debt, any preferred stock shares or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the following: issuance of (i) issuances Common Shares or standard options to purchase Common Shares to directors, officers or employees of the Company in their capacity as such pursuant to acquisitionsan Approved Share Plan (as defined below), joint venturesprovided that the exercise price of any such options is not lowered, license arrangements, leasing arrangements none of such options are amended to increase the number of shares issuable thereunder and similar transaction arrangementsnone of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) an issuance of shares of Common Stock Shares issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Shares issued pursuant to an Approved Share Plan that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard options to purchase Common Shares issued pursuant to an Approved Share Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Shares issued pursuant to an Approved Share Plan that are covered by clause (nor is any provision of any such Convertible Securitiesi) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Shares issued pursuant to an Approved Share Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iii) the issuance Conversion Shares; provided, that the terms of securities to employees, directors and other third parties under an Approved Share Plan; provided that provisions the Certificate of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as Designations are not amended, and modified or changed on or after the hereof, (iv) the issuance Warrant Preferred Shares; provided, that the terms of the Convertible NotesPreferred Warrant are not amended, modified or changed on or after the Conversion SharesClosing Date, the Warrants and (v) the Warrant Common Shares; provided, that the terms of the Common Warrants are not amended, modified or changed on or after the Closing Date (each of the foregoing in clauses (i) through (v), collectively the “Excluded Securities”). “Approved Share Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which Common Shares and standard options to purchase Common Shares may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
Appears in 1 contract
Sources: Securities Purchase Agreement (Lytus Technologies Holdings PTV. Ltd.)
Additional Issuance of Securities. The Company agrees that during for the period commencing on the date hereof and ending on the date immediately following the seventy-fifth (75th) day after the date hereof (the “Restricted Period”), unless otherwise consented to in writing by Iroquois, neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity Common Stock or any security or any debt or other instrument convertible or exchangeable or exercisable into Common Stock or which constitutes (or would constitute but for lack of a fixed exercise or conversion or similar price or if it were not solely cash settled) a “derivative security” (as defined under the rules and regulations under Section 16 of the 1▇▇▇ ▇▇▇) or otherwise an equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), 1▇▇▇ ▇▇▇) or which does or would otherwise constitute any Option or Convertible Securities, debt Security (with or related to equity), any preferred stock or any purchase rightsas defined in the Warrants) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, the immediately preceding sentence in this Section 4(j4(i) shall not apply in respect of the following: (i) issuances pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an issuance of (A) shares of Common Stock issued or standard options to purchase Common Stock or other standard equity linked securities (e.g., stock appreciation rights) to directors, officers, employees or consultants of the Company in their capacity as such pursuant to an Approved Share Plan (as defined below); provided that (1) all such issuances that are exercisable or vest during the Restricted Period (taking into account the shares of Common Stock issuable upon the conversion or exercise of Convertible Securities issued prior such options and equity linked securities that are exercisable or vest during the Restricted Period, but not including shares issuable pursuant to the date hereof Options or Convertible Securities that may be issued pursuant to an agreement in effect outstanding as of the date hereof; ) and are issued after the date hereof pursuant to this clause (A) do not, in the aggregate, exceed more than (i) 1,000,000 shares of Common Stock or standard options to purchase Common Stock or other standard equity linked securities (e.g., stock appreciation rights) to directors, officers or employees and (ii) 1,000,000 shares of Common Stock or standard options to purchase Common Stock or other standard equity linked securities (e.g., stock appreciation rights) to any person (provided that definitive terms of such Convertible Securities no more than 250,000 shall be issued as compensation for investor relation services) ; (whether such Convertible Securities have been issued or will be issued2) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities options is not lowered, none of such Convertible Securities options are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities options are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; of the Buyers and (iii3) the issuance price of securities Common Stock or the exercise price of any such options is not lower than the higher of (i) $0.30 or (ii) the closing price of the Company’s Common Stock on the OTC Bulletin Board on the trading day prior to employees, directors and other third parties under an Approved Share Plan; provided that provisions the issuance of such Approved Share Plan that were in effect on Common Stock or option; (B) shares of Common Stock issued upon the date immediately conversion or exercise of Options or Convertible Securities issued prior to the date hereof to the extent issued pursuant to their terms as of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and date hereof; (ivC) the issuance of Common Shares and the Convertible Notes, the Conversion Shares, the Warrants and Warrants; (D) the Warrant Shares.; (E) issuances of equity to a seller, or in the case of a merger, the shareholders of the target company in such merger, or the officers or employees thereof, in each case in connection with a bona fide merger, business combination transaction or acquisition of stock or assets outside of the ordinary course; (F) a stock split or other subdivision or combination, or a stock dividend made to all holders of any Company equity on a pro rata basis; or (G) issuances of Common Stock or Convertible Securities in connection with strategic partnerships, joint ventures, licensing, acquisition of assets or technology, or similar arrangements approved by a majority of the disinterested directors of the Company,
Appears in 1 contract
Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the sixty (60) Trading Day (as defined in the Warrants) anniversary of the Applicable Date (provided that such period shall be extended by the number of Trading Days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of or any option or right to purchase or other disposition of) any of their respective equity security or equity equivalent securities, including, without limitation, any equity-linked debt, preferred stock, rights, options, warrants or related security other instrument that is at any time and under any circumstances convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, capital stock and other securities of the Company (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under securities of the 1933 Act)Company or any Subsidiary which entitle the holder thereof to acquire Common Stock at any time, including without limitation, any Convertible Securitiesdebt, debt preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock or other securities that entitle the holder to receive, directly or indirectly, Common Stock) (collectively with or related to equity), any preferred such capital stock or any purchase rightsother securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the following: issuance of (iA) issuances shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to acquisitionsan Approved Share Plan (as defined below), joint venturesprovided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (A) do not, license arrangementsin the aggregate, leasing arrangements exceed more than 5% of the Common Stock issued and similar transaction arrangements; outstanding immediately prior to the date hereof and (ii2) an issuance such options are not amended to increase the number of shares issuable thereunder or to lower the exercise price thereof or to otherwise materially change the terms or conditions thereof in any manner that adversely affects any of the Buyers, (B) shares of Common Stock issued upon the conversion or exercise of Convertible Securities Equivalents issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms of such Convertible Securities (whether such Convertible Securities Equivalents have not been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to amended since the date of this Agreement, the conversion or exercise price of any such Convertible Securities is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) Agreement to increase the number of shares issuable thereunder and none of or to lower the exercise or conversion price thereof or otherwise materially change the terms or conditions of any such Convertible Securities are otherwise materially changed or waived (whether by the Company or the holder thereof) thereof in any manner that adversely affects any Buyer; of the Buyers, and (iiiC) the issuance Warrant Shares (each of securities to employeesthe foregoing in clauses (A) through (C), directors and other third parties under an collectively the “Excluded Securities”). “Approved Share Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such; “Placement Agent Warrant” means the warrants to be issued by the Company to the Placement Agent on the Closing Date to purchase, in the aggregate, up to 52,857 shares of Common Stock at an initial exercise price of $6.00 per share, in the form provided that provisions of such Approved Share Plan that were in effect to the Buyers on the date immediately prior hereof; and “Placement Agent Warrant Shares” means the shares of Common Stock issuable to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance Placement Agent upon exercise of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant SharesPlacement Agent Warrant.
Appears in 1 contract
Additional Issuance of Securities. So long as any Buyer beneficially owns any Preferred Shares or Warrants, the Company will not, without the prior written consent of the Required Holders, directly or indirectly, issue any other securities that would cause a breach or default under the Certificate of Designations or the Warrants. The Company agrees that during for the period commencing on the date hereof and ending on the earlier of (1) the date immediately following the 180th day after the first Installment Date (as defined in the Certificate of Designations) and (2) the occurrence of a Segregated Cash Trigger (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt Securities (with or related to equityas defined below), any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter), is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(l) shall not apply in respect of the following: issuance of (i) issuances shares of Common Stock or standard options to purchase Common Stock issued or issuable to directors, officers, employees or other service providers of the Company in their capacity as such pursuant to acquisitionsan Approved Stock Plan (as defined below), joint venturesprovided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such awards) after the date hereof pursuant to this clause (i) do not, license arrangementsin the aggregate, leasing arrangements and similar transaction arrangements; (ii) an issuance exceed more than 10% of the shares of Common Stock issued and outstanding as of the date of such issuance and (2) the exercise price of any such options is not lowered and none of such options are amended to increase the number of shares issuable thereunder; (ii) shares of Common Stock issued or issuable upon the conversion or exercise of Convertible Securities (other than shares of Common Stock issued or issuable pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreementhereof, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard options to purchase shares of Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than those issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; of the Buyers, (iii) the issuance Preferred Shares, (iv) the Conversion Shares, (v) the Warrant Shares and any other securities issued or issuable pursuant to this Agreement or any of the Transaction Documents, (vi) securities to employeesissued as consideration for the acquisition of another entity by the Company by merger, directors and purchase of substantially all of the assets or other third parties under an Approved Share Plan; reorganization or bona fide joint venture agreement, provided that provisions such issuance is approved by the majority of the disinterested directors of the Company and provided that such Approved Share Plan securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that were require or permit the filing of any registration statement in effect on connection therewith during the date Restricted Period and such issuance does not, in the aggregate, exceed more than 5% of the shares of Common Stock issued and outstanding immediately prior to the date hereof (each of this Agreementthe foregoing in clauses (i) through (vi), remain collectively the “Excluded Securities”) and (vii) provided that the Equity Conditions (as defined in effect without amendment the Certificate of Designations) are then satisfied and that the closing price of the Common Stock on the Trading Market equals or exceeds 200% of the initial Conversion Price (as defined in any manner that adversely affects any Buyerthe Certificate of Designations) for three consecutive Trading Days, including any amendment to increase the number sales of shares issuable thereunder, except for of Common Stock or Convertible Securities at a per share purchase price in excess of 160% of the proposal included initial Conversion Price (as defined in the Company’s preliminary proxy statement filed with the SEC on December 30Certificate of Designations) (as adjusted for stock splits, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Planstock dividends, as amendedstock combinations, recapitalizations and (iv) the issuance similar events; provided that if 90% of the Convertible Notesaggregate Stated Value (as defined in the Certificate of Designations) of the Preferred Shares has been paid in full to the Buyers or otherwise converted to Common Stock, then the Conversion SharesCompany may sell shares of Common Stock at a per share purchase price in excess of 130% of the exercise price of the Warrants). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock or other awards convertible, exercisable for or exchangeable for shares of Common Stock may be issued to any employee, officer, director or other service provider for services provided to the Warrants and the Warrant SharesCompany and/or a Subsidiary in their capacity as such.
Appears in 1 contract
Sources: Securities Purchase Agreement (MyMD Pharmaceuticals, Inc.)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of Buyers holding a majority in aggregate of number of Preferred Shares then outstanding, issue any Preferred Shares (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Certificate of Designations or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the one hundred twenty (120) Trading Day (as defined in the Warrants) anniversary of the Applicable Date (provided that such period shall be extended by the number of Trading Days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible SecuritiesSecurities (as defined below), debt (with or related to equity)any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the following: issuance of (iA) issuances shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to acquisitionsan Approved Stock Plan (as defined below), joint venturesprovided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (A) do not, license arrangementsin the aggregate, leasing arrangements exceed more than 10% of the Common Stock issued and similar transaction arrangementsoutstanding immediately prior to the date hereof and (2) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiB) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (A) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (A) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (nor is any provision of any such Convertible SecuritiesA) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (A) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iiiC) the Conversion Shares, (D) the Dividend Shares, (E) the Warrant Shares, and (F) shares of Common Stock issued in connection with strategic mergers and acquisitions, provided that (I) the primary purpose of such issuance is not to raise capital, (II) the acquirer of such shares of Common Stock in such issuance solely consists of either (1) the actual owners of such assets or securities acquired in such merger or acquisition or (2) the stockholders, partners or members of the foregoing Persons, (III) the number or amount (as the case may be) of such shares of Common Stock issued to each such Person by the Company shall not be disproportionate to such Person’s actual ownership of such assets or securities to employees, directors be acquired by the Company (as applicable) and other third parties under an Approved Share Plan; provided that provisions (IV) all such issuances of such Approved Share Plan that were in effect on Common Stock after the date hereof pursuant to this clause (E) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and hereof (iv) the issuance each of the foregoing in clauses (A) through (E), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such. “Convertible NotesSecurities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the Conversion Sharesholder thereof to acquire, any capital stock or other security of the Warrants and the Warrant SharesCompany (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Sources: Securities Purchase Agreement (WPCS International Inc)
Additional Issuance of Securities. The Company agrees that during for the period commencing on the date hereof and ending on the date immediately following the twentieth (20th) Business Day after the Closing Date (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly indirectly:
(i) file a registration statement under the 1933 Act relating to securities that are not the Common Shares (other than a registration statement on Form S-8 or such supplements or amendments to registration statements that are outstanding and have been declared effective by the SEC as of the date hereof (solely to the extent necessary to keep such registration statements effective and available and not with respect to any Subsequent Placement));
(ii) amend or modify (whether by an amendment, waiver, exchange of securities, or otherwise) any of the Company’s warrants to purchase Common Stock that are outstanding as of the date hereof; or
(iii) issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act)), any Convertible SecuritiesSecurities (as defined below), debt (with or related to equity)any debt, any preferred stock or any purchase rightsrights (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) (is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(l) shall not apply in respect of the following: issuance of (iA) issuances shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to acquisitionsan Approved Stock Plan (as defined below), joint venturesprovided that the exercise price of any such options is not lowered, license arrangements, leasing arrangements none of such options are amended to increase the number of shares issuable thereunder and similar transaction arrangementsnone of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiB) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (A) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (A) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (nor is any provision of any such Convertible SecuritiesA) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (A) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; and (iiiC) the issuance Common Shares (each of securities the foregoing in clauses (A) through (C), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior or subsequent to the date hereof pursuant to which shares of this AgreementCommon Stock and standard options to purchase Common Stock may be issued to any employee, remain officer or director for services provided to the Company in effect without amendment in their capacity as such. “Convertible Securities” means any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance capital stock or other security of the Convertible NotesCompany or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the Conversion Sharesholder thereof to acquire, any capital stock or other security of the Warrants and the Warrant SharesCompany (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Sources: Securities Purchase Agreement (Super League Gaming, Inc.)
Additional Issuance of Securities. The Company agrees that during for the period commencing on the date hereof and ending on the date immediately following the 20th Trading Day after the date hereof (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt Securities (with or related to equityas defined below), any preferred stock or any purchase rights) (“Additional Issuance”). Notwithstanding the foregoing, this Section 4(j) 12 shall not apply in respect of the following: issuance of (i) issuances shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to acquisitionsan Approved Stock Plan (as defined below), joint venturesprovided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, license arrangementsin the aggregate, leasing arrangements exceed more than 5% of the Common Stock issued and similar transaction arrangementsoutstanding immediately prior to the date hereof and (2) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects the Holder; (ii) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (nor is any provision of any such Convertible Securitiesi) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerthe Holder; (iii) the issuance of securities to employeesNew Shares, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance New Warrant Shares and (v) subject to the Company’s compliance with Section 11 above, such shares of common stock and warrants with substantially identical terms to the New Securities issued in exchange for a Series A Warrant held as of the Convertible Notesdate hereof by a single investor that is exercisable as of the date hereof into no more than 610,000 shares of Common Stock, which exchange is consummated pursuant to an agreement on substantially identical in terms to this Agreement (each of the Conversion Sharesforegoing in clauses (i) through (v), collectively the Warrants “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Warrant SharesCompany in their capacity as such.
Appears in 1 contract
Additional Issuance of Securities. The Company agrees that during the Restricted Period, the Company shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt (with or related to equity), any preferred stock or any purchase rights) (“Additional Issuance”). Notwithstanding the foregoing, this Section 4(j) shall not apply in respect of the following: (i) issuances pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; provided that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any the Buyer; (iii) the issuance of securities to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any the Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30May 9, 2024 2025 for the annual special stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Shares.
Appears in 1 contract
Sources: Securities Purchase Agreement (Mullen Automotive Inc.)
Additional Issuance of Securities. The Company agrees that during for the period commencing on the date hereof and ending on the 30th calendar day after the Closing Date (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), 1▇▇▇ ▇▇▇) or any Convertible Securities, debt Securities (with or related to equity), any preferred stock or any purchase rights) (“Additional Issuance”as defined in the July SPA). Notwithstanding the foregoing, this Section 4(j4(b)(xix) shall not apply in respect of the following: issuance of (i) issuances shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to acquisitionsan Approved Stock Plan (as defined in the July SPA), joint venturesprovided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, license arrangementsin the aggregate, leasing arrangements exceed more than 10% of the Common Stock issued and similar transaction arrangementsoutstanding immediately prior to the date hereof and (2) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects the Holder; (ii) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (nor is any provision of any such Convertible Securitiesi) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerthe Holder; (iii) the issuance of securities to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included Conversion Shares (as defined in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amendedJuly SPA), and (iv) the issuance Warrant Shares (as defined in the July SPA), the August Warrant Shares (as defined in that certain Warrant Exercise Agreement, dated as of August 18, 2021), the September Warrant Shares (as defined in the September WEA), the November Warrant Shares (as defined in the November WEA) and the December Warrant Shares (each of the Convertible Notesforegoing in clauses (i) through (iv), collectively the Conversion Shares“Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Warrants and the Warrant SharesCompany in their capacity as such.
Appears in 1 contract
Additional Issuance of Securities. The Company agrees that during for the Restricted Periodperiod commencing on the date hereof and ending on the 30th calendar day after the Minimum Holding Date, neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), 1▇▇▇ ▇▇▇) or any Convertible Securities, debt Securities (with or related to equity), any preferred stock or any purchase rights) (“Additional Issuance”as defined in the July 2021 SPA). Notwithstanding the foregoing, this Section 4(j4(b)(xvi) shall not apply in respect of the following: issuance of (i) issuances shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to acquisitionsan Approved Stock Plan (as defined in the July 2021 SPA), joint venturesprovided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, license arrangementsin the aggregate, leasing arrangements exceed more than 10% of the Common Stock issued and similar transaction arrangementsoutstanding immediately prior to the date hereof and (2) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects the Holder; (ii) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (nor is any provision of any such Convertible Securitiesi) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerthe Holder; (iii) the issuance of securities to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included Conversion Shares (as defined in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amendedJuly 2021 SPA), and (iv) the issuance Warrant Shares (as defined in the July 2021 SPA), the August Warrant Shares (as defined in that certain Warrant Exercise Agreement, dated as of August 18, 2021), the September Warrant Shares (as defined in that certain Warrant Exercise Agreement dated as of September 1, 2021 by and between the Company and the Holder, as amended), the November Warrant Shares (as defined in the November 2021 WEA) and the December Warrant Shares (as defined in the December 2021 WEA) (each of the Convertible Notesforegoing in clauses (i) through (iv), collectively the Conversion Shares“Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Warrants and the Warrant SharesCompany in their capacity as such.
Appears in 1 contract
Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the ninety (90) day anniversary of the date hereof (provided that such period shall be extended by the number of days during such period and any extension thereof contemplated by this proviso on which the Registration Statement is not effective or any prospectus contained therein is not available for use) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity Common Stock or any security or any debt or other instrument convertible or exchangeable or exercisable into Common Stock or which constitutes (or would constitute but for lack of a fixed exercise or conversion or similar price or if it were not solely cash settled) a “derivative security” (as defined under the rules and regulations under Section 16 of the 1▇▇▇ ▇▇▇) or otherwise an equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act)1▇▇▇ ▇▇▇) or which does or would otherwise constitute any Option (as defined in the Warrants) or Convertible Securities (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any Convertible Securities, debt (with or related time thereafter) is referred to equity), any preferred stock or any purchase rights) (as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, the immediately preceding sentence in this Section 4(j) shall not apply in respect of the following: issuance of (iA) issuances shares of Common Stock or standard options to purchase Common Stock or other standard equity linked securities (e.g., stock appreciation rights) to directors, officers or employees of the Company in their capacity as such pursuant to acquisitionsan Approved Share Plan (as defined below), joint venturesprovided that the exercise price of any such options is not lowered, license arrangements, leasing arrangements none of such options are amended to increase the number of shares issuable thereunder and similar transaction arrangementsnone of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiB) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; provided that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (nor is any provision of any such Convertible SecuritiesA) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iiiC) the Warrants; (D) the Warrant Shares; (E) issuances of Common Stock or Convertible Securities in connection with strategic partnership, licensing, acquisition of a product candidate or technology, or similar arrangements, in each case, that are not primarily for financing purposes; (F) a stock split or other subdivision or combination, or a stock dividend made to all holders of any Company equity on a pro rata basis; (G) issuances of Common Stock as a dividend on shares of preferred stock outstanding as of the date hereof; or (H) the issuance of securities to employeesCommon Stock or Convertible Securities in a firm commitment underwritten public offering in which the Buyers are included as selling stockholders in the registration statement for such public offering (each of the foregoing in clauses (A) through (H), directors and other third parties under an collectively the “Excluded Securities”). “Approved Share Plan; provided that provisions ” means any employee benefit plan which has been approved by the board of such Approved Share Plan that were in effect on directors of the date immediately Company prior to or subsequent to the date hereof pursuant to which shares of this AgreementCommon Stock and standard options to purchase Common Stock may be issued to any employee, remain officer or director for services provided to the Company in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, their capacity as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Sharessuch.
Appears in 1 contract
Sources: Securities Purchase Agreement (Navidea Biopharmaceuticals, Inc.)
Additional Issuance of Securities. (i) The Company agrees that during for (x) the period commencing on the date hereof and ending on the date immediately following the 30th calendar day after the effective date of the Resale Registration Statement (as defined below) for the Note Shares underlying the Initial Purchased Notes and (y) the period commencing on the date of delivery of any Subsequently Purchased Notes Notice and ending on the date immediately following the 30th calendar day after the effectiveness of the Resale Registration Statement for the Note Shares underlying the such Subsequently Purchased Notes (each such period, a “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or register or amend any outstanding registration statements (other than amendments to outstanding registration statements to correct any inaccurate information or update for material changes) or file any shelf registration statements or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt (with or related to equity), any preferred stock or any purchase rights) (“Additional Issuance”). Notwithstanding the foregoing, this Section 4(j4(j)(i) shall not apply during a Restricted Period in respect of (A) the following: issuance of Options or Convertible Securities issued under any Approved Stock Plan, so long as (i) issuances pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an issuance the aggregate number of shares issued and issuable pursuant thereto does not exceed 5% of the Common Stock issued upon the conversion or exercise of Convertible Securities issued and outstanding immediately prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of and (ii) the date hereof; provided that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) price of any such Convertible Security Options is made solely pursuant to not lowered and the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price Conversion Price of any such Convertible Securities is not lowered, none of such Options or Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities options are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; of the Buyers, (iiiB) the issuances of Note Shares, (C) any sale or issuance of securities under an ATM Sales Program, Equity Line of Credit or the June Plan (other than sales or issuances under ATM Sales Program in which a single investor or group of investors is sold or issued in excess of three million dollars ($3,000,000) in the aggregate of Common Stock in a single transaction or series of related transactions), and provided that any sales or issuances made under the June Plan shall (i) be made at the price per share described in the “Plan of Distribution—Form of Sales Agreement with Investor” subsection of the prospectus supplement filed by the Company on June 26, 2023 and (ii) not exceed one million dollars ($1,000,000) in the aggregate during the Restricted Period, or (D) the issuance of securities to employeesof the Company or any Subsidiary of the Company that are not freely saleable during any Restricted Period and are issued as consideration in acquisitions, divestitures, partnerships, licenses, collaborations or strategic transactions approved by the board of directors and other third parties under an Approved Share Plan; or a majority of the members of a committee of directors of the Company or applicable Subsidiary established for such purpose, provided that provisions any such issuance shall only be to a Person (or to the equity holders of such a Person) which is, itself or through its subsidiaries or controlled affiliates, an operating company or an asset in a business synergistic with the business of the Company and/or its Subsidiaries and shall provide to the Company and/or its Subsidiaries additional benefits in addition to the investment of funds, but shall not include a transaction in which a Subsidiary of the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities (a “Strategic Investment”). An “Approved Share Plan that were in effect on Stock Plan” means any security-based compensation plan which has been approved by the date immediately Board of Directors of the Company prior to the date hereof, pursuant to which shares of this AgreementCommon Stock, remain options to purchase Common Stock and other incentive equity awards may be issued to any employee, officer, consultant or director for services provided to the Company in effect without amendment in any manner that adversely affects any Buyertheir capacity as such, including any amendment to increase the number of shares issuable thereunder, except and not for the proposal included in purpose of raising capital, pursuant to any consulting agreement, advisory agreement or independent contractor agreement approved by the Company’s preliminary proxy statement filed with Board of Directors or the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Sharescompensation committee thereof.
Appears in 1 contract
Sources: Securities Purchase Agreement (AMERICAN BATTERY TECHNOLOGY Co)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes or the Warrants. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the 90th Trading Day (as defined in the Notes) after the later of (x) the Public Company Date (or, if any of the Underlying Securities are subject to a lockup in connection with the Public Company Date, the date of termination (or expiration, as applicable) of such lockup) and (y) the earlier to occur of (x) the effective date of a registration statement registering the resale by the Investors of the Underlying Securities and (y) the date the Securities are initially eligible to be resold by the Investors pursuant to Rule 144 (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any registration statement registering the resale of any Underlying Securities is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure (as defined in the Registration Rights Agreement) exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible SecuritiesCommon Stock Equivalents (as defined below), debt (with or related to equity)any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(v) shall not apply in respect of the following: issuance of (i) issuances pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an issuance of shares of Common Stock issued upon or Options (as defined in the conversion Notes) issued, directly or exercise of Convertible Securities issued prior indirectly, to employees or directors of, or consultants or advisors to, the date hereof or Convertible Securities that may be issued Company in their capacity as such pursuant to an agreement in effect Approved Stock Plan (as of the date hereof; defined below), provided that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities Options is not lowered, none of such Convertible Securities options are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities options are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iiiii) shares of Common Stock issued upon the issuance conversion or exercise of securities Common Stock Equivalents (other than standard options to employees, directors and other third parties under purchase Common Stock issued pursuant to an Approved Share Plan; Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Common Stock Equivalent is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Approved Share Plan Common Stock Equivalent or the Certificate of Incorporation, as applicable, that were in effect on the date immediately prior to the date of this AgreementAgreement (excluding amendments of the Certificate of Incorporation that does not amend, remain modify or waive any of the terms or conditions of any securities issuable thereunder in effect without amendment in a manner adverse to the Buyers), the conversion, exercise or issuance price of any manner such Common Stock Equivalents (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that adversely affects any Buyerare covered by clause (i) above) is not lowered, including any amendment none of such Common Stock Equivalents (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunderthereunder and none of the terms or conditions of any such Common Stock Equivalents (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects the economic interests of any of the Buyers; (iii) the Conversion Shares, except (iv) the Warrant Shares, (v) amendments to any simple agreements for future equity issued and outstanding as of the proposal included in date hereof (the Company’s preliminary proxy statement filed with “Existing SAFEs”), provided (I) such amendments do not have the SEC on December 30, 2024 for the annual stockholder meeting to increase effect of increasing the number of shares of Common Stock or Common Stock Equivalents issuable under upon the 2022 Equity Incentive Planconversion of the Existing SAFEs, as amended(II) such amendments are solely for the purpose of facilitating the conversion of the Existing SAFEs in connection with the Business Combination Closing, and (ivIII) such amendments do not have the effect of reducing the conversion price of the Existing SAFEs (clause (v), the “Amended Existing SAFEs”) (vi) if prior to the Public Company Date, Permitted Safe Notes and/or equity securities of the Company that will be exchanged into shares of Common Stock of the Successor Public Company at a price per share greater than or equal to $6.50 per share of common equity of the Successor Public Company, (vii) any shares of Common Stock issued or issuable in connection with any bona fide strategic or commercial alliances, sponsored research, collaboration, technology license, development, OEM, marketing or other similar agreements, acquisitions, mergers, licensing arrangements, and strategic partnerships (in an aggregate amount not in excess of 25% of the market capitalizations of the Company as of the time immediately following the Business Combination Closing Date), provided, that (A) the primary purpose of such issuance is not to raise capital as reasonably determined, and (B) the purchaser or acquirer or recipient of the Convertible Notessecurities in such issuance solely consists of either (I) the actual participants in such strategic or commercial alliance, strategic or commercial licensing arrangement or strategic or commercial partnership, (II) the Conversion Sharesactual owners of such assets or securities acquired in such acquisition or merger or (III) the stockholders, partners, employees, consultants, officers, directors or members of the Warrants foregoing Persons, in each case, which is, itself or through its subsidiaries, an operating company or an owner of an asset, in a business synergistic with the business of the Company and shall provide to the Warrant SharesCompany additional benefits in addition to the investment of funds, and (IV) the number or amount of securities issued to such Persons by the Company shall not be disproportionate to each such Person’s actual participation in (or fair market value of the contribution to) such strategic or commercial alliance or strategic or commercial partnership or ownership of such assets or securities to be acquired by the Company, as applicable, (vii) shares of Common Stock issued pursuant to Permitted Sale Notes and (viii) shares of Common Stock issued pursuant to Permitted Sale Notes or Amended Existing SAFEs and (ix) the securities to be issued in the Business Combination in accordance with the terms of the Merger Agreement, as in effect as of the date hereof (each of the foregoing in clauses (i) through (x), collectively the “Excluded Securities”). For the purpose of this Agreement, “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock, options to purchase Common Stock, restricted stock purchase agreements and restricted stock units or any other similar equity awards may be issued to any employee, officer, director, consultant, advisor or service provider for services provided to the Company in their capacity as such.
Appears in 1 contract
Sources: Securities Purchase Agreement (Fold Holdings, Inc.)
Additional Issuance of Securities. The Company agrees that during for the period commencing on the date hereof and ending on the earlier of (i) the date immediately following the 60th calendar day after the Initial Closing Date, and (ii) the date on which the Common Shares are listed for trading on NASDAQ (the "Restricted Period"), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “"equity security” " (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt Common Share Equivalents (with or related to equityas defined below), (any preferred stock such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any purchase rightstime thereafter) (“Additional Issuance”is referred to as a "Subsequent Placement"). Notwithstanding the foregoing, this Section 4(j4(m) shall not apply in respect of the following: issuance of (i) issuances pursuant Common Shares or any Common Shares Equivalents, as applicable; provided that, any such Person enters into a lock up agreement in form and substance acceptable to acquisitionsthe Buyers which shall prohibit the direct or indirect sale, joint venturestransfer or disposition of such Common Shares or Common Stock Equivalents, license arrangementsas applicable, leasing arrangements to any Person during the Restricted Period; provided further, that (x) no lock-up agreement shall be required to the extent such Common Shares and/or Common Shares issuable upon conversion, exercise or exchange of any Common Shares and/or Common Share Equivalent, as applicable, are restricted securities ineligible to be resold by any holder thereof on the Principal Market (and similar transaction arrangementsany Eligible Market) during the Restricted Period and (y) the Required Holder may, in its sole discretion, waive the requirement for such Person to enter into a lock up agreement; (ii) an issuance the Conversion Shares, (iii) the Commitment Shares and (iv) Common Shares issued pursuant to the Permitted ATM (as defined below) (each of shares the foregoing in clauses (i) through (iv), collectively the "Excluded Securities"). "Approved Share Plan" means any employee benefit plan which has been approved by the board of Common Stock issued upon directors of the conversion Company prior to or exercise of Convertible Securities issued prior subsequent to the date hereof or Convertible Securities that pursuant to which Common Shares and standard options to purchase Common Shares may be issued pursuant to an agreement any employee, officer or director for services provided to the Company in effect their capacity as such. "Permitted ATM" means any at-the-market offering of the date hereofCompany in an arms-length transaction with a bona fide broker-dealer; provided that definitive terms (a) the sale of Common Shares pursuant to any such Convertible Securities "at-the-market" offering shall be above USD $1.00, and (whether B) the trading volume of Common Shares issued pursuant to any such Convertible Securities have been issued or will "at-the-market" offering shall be issued) have been disclosed less than 5% of the trading volume on any Trading Day (as defined in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant Notes). Notwithstanding anything to the conversion or exercise (as the case may be) provisions of such Convertible Security that were contrary in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion Company shall not issue any other securities that would cause a breach or exercise price of any such Convertible Securities is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; (iii) the issuance of securities to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable default under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Shares.
Appears in 1 contract
Sources: Securities Purchase Agreement (SOL Strategies Inc.)
Additional Issuance of Securities. The Company agrees that during for the period commencing on the date hereof and ending on the fifteenth (15th) day after the date hereof (the “Restricted Period”), neither the Company shall not nor any of its Subsidiaries shall, without the prior consent of the Purchasers, (i) directly or indirectly indirectly, issue, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option option, right or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right warrant to purchase or other disposition of) otherwise transfer or dispose of any equity security share of Common Stock or any equity-linked securities convertible into or related security (including, without limitation, exercisable or exchangeable for Common Stock or file any “equity security” (as that term is defined under Rule 405 promulgated registration statement under the 1933 Act), Act (other than a Registration Statement on Form S-8) with respect to any Convertible Securities, debt (with or related to equity), any preferred stock or any purchase rights) (“Additional Issuance”). Notwithstanding of the foregoing, or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The provisions of this Section 4(j) section shall not apply in respect to (A) the Securities to be issued and sold hereunder or issuable upon conversion or exercise of the following: Securities, (iB) issuances pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities the warrants issued prior to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLC in connection with the transactions contemplated by this Agreement, (C) issuances of shares of Common Stock issuable upon exchange or conversion of currently outstanding convertible notes, (D) issuances of shares of Common Stock upon the exercise of currently outstanding warrants or amendments to the warrant agreements related thereto, (E) granting options under the Company’s incentive compensation plans existing on the date hereof or Convertible Securities that may be issued issuances of shares of Common Stock issuable in connection with outstanding awards thereunder as of the date hereof, (F) issuances of shares of Common Stock issuable pursuant to an agreement agreements in effect as of the date hereof; provided that definitive terms hereof or amendments related thereto or (G) issuing shares of such Convertible Securities Common Stock in connection with strategic acquisitions, (whether such Convertible Securities have been issued or will be issuedH) have been disclosed in the SEC Documents; andissuing shares of Common Stock subject to shareholder approval, provided further that the conversion or exercise (as the case may beI) issuing shares of any such Convertible Security is made solely preferred stock and/or Common Stock pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise an underwritten public offering with a per share price of any such Convertible Securities is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; (iii) the issuance of securities to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Sharesgreater than $1.21375.
Appears in 1 contract
Sources: Securities Purchase Agreement (Cell Therapeutics Inc)
Additional Issuance of Securities. The Company agrees that during for the period commencing on the date hereof and ending on the 75th day after the Closing Date (the “Restricted Period”), the Company shall not directly or indirectly issue, offer, sell, grant any option option, restricted stock unit or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any shares of Common Stock equity security or any equity-linked securities of the Company or related security (the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any “equity security” (as debt, preferred stock, right, option, warrant or other instrument that term is defined under Rule 405 promulgated under at any time convertible into or exercisable or exchangeable for, or otherwise entitles the 1933 Act)holder thereof to receive, any Convertible Securities, debt (with or related to equity), any preferred stock or any purchase rights) Common Stock (“Additional IssuanceCommon Stock Equivalents”)) . Notwithstanding the foregoing, this Section 4(j4(m) shall not apply in respect of the following: issuance of (i) issuances shares of Common Stock or standard options to purchase or restricted stock units to acquire Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangementsan Approved Stock Plan (as defined below); (ii) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (nor is any provision of any such Convertible Securitiesi) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerthe Purchaser; (iii) the issuance shares of securities Common Stock issued pursuant to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this certain Sales Agreement, remain in effect without amendment in dated November 19, 2024, by and among the Company, ▇▇▇▇▇▇▇ & Company, LLC and ▇.▇. ▇▇▇▇▇▇▇▇▇▇ & Co., LLC; provided, however, that shares shall not be issued pursuant to this Section 4(m)(iii) until after the 60th day after the Closing Date and only at a minimum price of at least $3.00 per share, provided further, that, with regard to any manner that adversely affects any BuyerTrading Day on which shares issued pursuant to this Section 4(m)(iii) are sold and issued, including any amendment to increase the such number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC sold and issued on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and such Trading Day shall not exceed: (ivA) the issuance 5% of the Convertible Notesdaily trading volume of the Common Stock on the Principal Market on such Trading Day, (B) if the Conversion Shares, the Warrants and the Warrant Shares.minimum price of all shares sold on such Trading
Appears in 1 contract
Additional Issuance of Securities. So long as the Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Buyer, issue any Warrants (other than to the Buyer as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Warrants. The Company agrees that during for each period commencing on a Closing Date hereunder, through, and including, the tenth (10th) Trading Day immediately following such Closing Date (each, a “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly indirectly:
(i) file a registration statement under the Securities Act relating to securities that are not the Registrable Securities (other than a registration statement on Form S-4, Form S-8 or such supplements or amendments to registration statements that are outstanding and have been declared effective by the SEC as of the date hereof (including the Registration Statement) (solely to the extent necessary to keep such registration statements effective and available and not with respect to any Subsequent Placement)); or
(ii) issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Securities Act)), any Convertible Securities, debt (with or related to equity)any debt, any preferred stock or any purchase rightsrights (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) (is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j) shall not apply in respect of the following: issuance of Excluded Securities. “Excluded Securities” means (i) issuances shares of Common Stock or options to purchase Common Stock issued to directors, officers or employees of the Company for services rendered to the Company in their capacity as such pursuant to acquisitionsan Approved Stock Plan, joint venturesprovided that (A) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date of this Agreement pursuant to this clause (i) do not, license arrangementsin the aggregate, leasing arrangements exceed more than 5% of the Common Stock issued and similar transaction arrangementsoutstanding immediately prior to the date thereof and (B) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any Buyer; (ii) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; this Agreement, provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (nor is any provision of any such Convertible Securitiesi) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iii) the issuance shares of securities Common Stock issuable pursuant to employeesthe terms of the Notes, including, without limitation, upon conversion or otherwise; (iv) any shares of Common Stock issued or issuable in connection with any acquisitions (whether by merger, consolidation, purchase of equity, purchase of assets, reorganization or otherwise), mergers, consolidations, or reorganizations approved by a majority of the disinterested directors and other third parties under an Approved Share Plan; of the Company, provided that provisions any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business complementary with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith; and (v) up to 174,358 shares of Common Stock currently held on treasury. “Approved Share Plan that were in effect on Stock Plan” means any employee benefit plan which has been approved by the date immediately board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of this AgreementCommon Stock and standard options to purchase Common Stock may be issued to any employee, remain officer or director for services provided to the Company in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, their capacity as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Sharessuch.
Appears in 1 contract
Sources: Securities Purchase Agreement (New Era Helium Inc.)
Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending on the sixty first (61st) Trading Day immediately following the Closing Date (provided that such period shall be extended by the number of days during such period and any extension thereof contemplated by this proviso on which the Registration Statement is not effective or any prospectus contained therein is not available for use) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act)), any Convertible Securities, debt (with or related to equity)any debt, any preferred stock or any purchase rightsrights (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) (is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j) shall not apply in respect of the following: issuance of (iA) issuances shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to acquisitionsan Approved Share Plan (as defined below), joint venturesprovided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (A) do not, license arrangementsin the aggregate, leasing arrangements exceed more than 200,000 shares of Common Stock (as adjusted for stock splits, stock combinations and other similar transaction arrangementstransactions occurring after the date of this Agreement) and (2) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (iiB) an issuance of shares of Common Stock issued upon the conversion or exercise of of, or otherwise on account of, Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; , provided that definitive terms the conversion, exercise or other method of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion conversion, exercise or exercise other method of issuance (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion conversion, exercise or exercise issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) is not lowered, none of such Convertible Securities are (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase, or which results in an increase in, the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (A) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iiiC) shares of Common Stock issued in connection with strategic mergers and acquisitions, provided that (I) the primary purpose of such issuance is not to raise capital, (II) the acquirer of such shares of Common Stock in such issuance solely consists of either (1) the actual owners of such assets or securities acquired in such merger or acquisition or (2) the stockholders, partners or members of the foregoing Persons, (III) the number or amount (as the case may be) of such shares of Common Stock issued to each such Person by the Company is not disproportionate to such Person’s actual ownership of such assets or securities to employeesbe acquired by the Company (as applicable) and (IV) all such issuances of Common Stock after the date hereof pursuant to this clause (C) do not, directors in the aggregate, exceed more than 1,000,000 shares of Common Stock (adjusted for stock splits, stock combinations and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to similar transactions occurring after the date of this Agreement); (D) 54,650 shares of Common Stock issuable upon exercise of a warrant issued to the Placement Agent pursuant to an agreement between the Company and the Placement Agent dated October 18, remain in effect without amendment in any manner that adversely affects any Buyer2013, including any amendment to increase (E) the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, Common Shares and (ivF) the issuance Warrant Shares (each of the foregoing in clauses (A) through (F), collectively the “Excluded Securities”). “Approved Share Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such. “Convertible NotesSecurities” means any capital stock, note, debenture or other security of the Conversion SharesCompany or any of its Subsidiaries that is, or may become, at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the Warrants and holder thereof to acquire, any capital stock, note, debenture or other security of the Warrant SharesCompany (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Sources: Securities Purchase Agreement (Recon Technology, LTD)
Additional Issuance of Securities. The Company agrees that during the Restricted Period, the Company shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt (with or related to equity), any preferred stock or any purchase rights) (“Additional Issuance”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the issuance of the following: (i) issuances Ordinary Shares or standard options to purchase Ordinary Shares to directors (who are also employees of the Company), officers, employees or consultants of the Company pursuant to acquisitionsan Approved Share Plan (as defined below), joint venturesprovided that the exercise price of any such options is not lowered, license arrangements, leasing arrangements none of such options are amended to increase the number of shares issuable thereunder and similar transaction arrangementsnone of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects Buyer; (ii) an issuance of shares of Common Stock Ordinary Shares issued upon the conversion or exercise of Convertible Securities issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; provided that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; (iii) the issuance of securities to employees, directors and other third parties under an Approved Share PlanConvertible Notes; provided that provisions of such Approved Share Plan that were in effect on (iv) Conversion Shares; (v) the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, Warrants; and (ivvi) the Warrant Shares; and (vii) the issuance of approximately 14.6 million shares in regards to the Convertible NotesCompany’s acquisition of 51% of Holu Hou Energy LLC where such shares do not have registration rights and the majority of such shares will be held in escrow until after December 31, 2023. The Company further agrees that, without prior consent of the Buyer, until the earlier of (A) twelve (12) months after the Second Closing or (b) the date on which Buyer has sold or disposed of all Securities, the Conversion Shares, the Warrants and the Warrant Company will not issue any floating conversion rate or variable priced securities convertible into Ordinary Shares.
Appears in 1 contract
Sources: Securities Purchase Agreement (Borqs Technologies, Inc.)
Additional Issuance of Securities. The Company agrees that during the Restricted Period(i) So long as any Exchange Notes remain outstanding, the Company and each Subsidiary shall not be prohibited from effecting, or entering into an agreement directly or indirectly issueto effect a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which the Company or any Subsidiary (i) issues or sells any Convertible Securities either (A) at a conversion, offer, sell, grant exercise 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 option or right to purchasetime after the initial issuance of such Convertible Securities, or otherwise dispose (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such Convertible Securities 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, other than pursuant to customary adjustments for stock splits, stock dividends, stock combinations, recapitalizations and similar events or (or announce ii) enters into any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security agreement (including, without limitation, any “an equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt (with or related to equity), any preferred stock or any purchase rightsline of credit) (“Additional Issuance”). Notwithstanding the foregoing, this Section 4(j) shall not apply in respect of the following: (i) issuances pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; provided that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by whereby the Company or any Subsidiary may sell securities at a future determined price; provided that, for avoidance of doubt (x) the holder thereofentry into any “at-the-market” offering within the meaning of Rule 415(a)(4) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities are otherwise materially changed or waived Act (whether by an “ATM Issuance”) whereby the Company or the holder thereof) in any manner that adversely affects Subsidiary may sell securities at a future determined price and any Buyer; (iii) the issuance of any securities to employeespursuant thereto, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Sharesshall not be considered a “Variable Rate Transaction”.
Appears in 1 contract
Additional Issuance of Securities. The Company agrees that during for the period commencing on the date hereof and ending on the date immediately following the 90th day after the satisfaction of the Registration Statement condition set forth on Annex A to the Buyer Schedule; provided, that if the Second Closing shall not have occurred due to a termination of the parties’ obligations to consummate the Second Closing in accordance with Section 8 (and the Company is not in material breach of its obligations under the Transaction Documents), then the foregoing provision shall apply only for 90 days after the First Closing) (the “Restricted Period”), the Company shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securitiesconvertible securities, debt (with or related to equity), any preferred stock or any purchase rights) (“Additional Issuance”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the issuance of the following: (i) issuances shares of Common Stock or standard options to purchase Common Stock to directors (who are also employees of the Company), officers, employees or consultants of the Company pursuant to acquisitionsan Approved Share Plan (as defined below) or otherwise as approved by the board of directors and to directors of the Company who are not also employees of the Company, joint venturesin each case, license arrangementsin their capacity as such, leasing arrangements provided that the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and similar transaction arrangementsnone of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects Buyer; (ii) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (i) above) issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; provided that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities are (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (i) above) (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; (iii) the issuance of securities Convertible Notes, (iv) the Conversion Shares; (v) the Warrants; (vi) the Warrant Shares and (vii) up to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunderof Common Stock issued that is equal to $15,000,000 divided by the closing bid price on the day prior to such issuance, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the an issuance of the Convertible NotesCommon Stock pursuant to acquisitions, the Conversion Sharesjoint ventures, the Warrants license arrangements, leasing arrangements and the Warrant Shares.like, including any issuances relating to the
Appears in 1 contract
Sources: Securities Purchase Agreement (Tanzanian Royalty Exploration Corp)
Additional Issuance of Securities. The Company agrees that during the Restricted Period, the Company shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt (with or related to equity), any preferred stock or any purchase rights) (“Additional Issuance”). Notwithstanding the foregoing, this Section 4(j4(i) shall not apply in respect of the following: (i) issuances pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities issued prior to the date hereof or Convertible Securities that may be issued pursuant to an agreement in effect as of the date hereof; provided that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any the Buyer; (iii) the issuance of securities to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any the Buyer, including any amendment to increase the number of shares issuable thereunder, except for the a proposal to be included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual a special stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Shares.
Appears in 1 contract
Sources: Securities Purchase Agreement (Mullen Automotive Inc.)
Additional Issuance of Securities. The Company agrees that during the Restricted Period(i) So long as any Exchange Notes remain outstanding, the Company and each Subsidiary shall not be prohibited from effecting, or entering into an agreement directly or indirectly issueto effect a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which the Company or any Subsidiary (i) issues or sells any Convertible Securities either (A) at a conversion, offer, sell, grant exercise 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 option or right to purchasetime after the initial issuance of such Convertible Securities (other than the Exchange Notes), or otherwise dispose (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such Convertible Securities 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, other than pursuant to customary adjustments for stock splits, stock dividends, stock combinations, recapitalizations and similar events or (or announce ii) enters into any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security agreement (including, without limitation, an equity line of credit) whereby the Company or any Subsidiary may sell securities at a future determined price (other than standard and customary “equity securitypreemptive” or “participation” rights); provided, that for avoidance of doubt, neither the entry into (as that term is defined under x) an agreement, the terms of which have been approved by the Required Holders, providing for the sale or issuance of securities thereunder pursuant to an “at-the-market” offering within the meaning of Rule 405 promulgated under 415(a)(4) of the 1933 Act)Act (an “ATM Sales Agreement”) nor (y) that certain Business Combination Agreement, any Convertible Securitiesdated as of March 22, debt (with or related 2021, by and among JAWS Spitfire Acquisition Corporation, Spitfire Merger Sub, Inc. and the Company, as amended by Amendment No. 1 to equity)the Business Combination Agreement, any preferred stock or any purchase rights) (“Additional Issuance”). Notwithstanding dated as of July 20, 2021, by and among JAWS Spitfire Acquisition Corporation, Spitfire Merger Sub, Inc. and the foregoingCompany, this Section 4(j) shall not apply as in respect effect as of the following: date hereof and without giving effect to any amendment, modification, waiver or supplement thereto (ithe “Business Combination Agreement”) issuances pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an nor the issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities issued prior to the date hereof or Convertible Securities that may pursuant thereto shall be issued pursuant to an agreement in effect as of the date hereof; provided that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; (iii) the issuance of securities to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Sharesconsidered a “Variable Rate Transaction.”
Appears in 1 contract
Additional Issuance of Securities. The Company agrees that during for the Restricted Periodperiod commencing on the date hereof and ending on the thirtieth (30th) day after the date hereof, neither the Company shall not nor any of its Subsidiaries shall, without the prior consent of the Purchasers, (i) directly or indirectly indirectly, issue, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option option, right or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right warrant to purchase or other disposition of) otherwise transfer or dispose of any equity security share of Common Stock or any equity-linked securities convertible into or related security (including, without limitation, exercisable or exchangeable for Common Stock or file any “equity security” (as that term is defined under Rule 405 promulgated registration statement under the 1933 Act), Act (other than a Registration Statement on Form S-8) with respect to any Convertible Securities, debt (with or related to equity), any preferred stock or any purchase rights) (“Additional Issuance”). Notwithstanding of the foregoing, or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise; provided, however, that nothing in the foregoing clauses (i) and (ii) shall be construed as limiting the Company’s ability to negotiate and/or otherwise prepare to consummate a transaction following the expiration of the restricted period so long as such transaction is not publicly announced prior to the expiration of the restricted period. The provisions of this Section 4(j) 4.13 shall not apply in respect to (A) the Securities to be issued and sold hereunder or issuable upon conversion or exercise of the following: Securities, (iB) issuances pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an issuance of shares of Common Stock issued upon the exercise of the ▇▇▇▇▇▇ Warrants and/or the Trout Warrants, (C) issuances of shares of Common Stock issuable upon conversion or exchange of currently outstanding convertible notes, (D) issuances of shares of Common Stock upon the exercise of Convertible Securities issued prior currently outstanding warrants or amendments to the warrant agreements related thereto, (E) granting options or other securities under the Company’s incentive compensation plans existing on the date hereof or Convertible Securities that may be issued issuances of shares of Common Stock issuable in connection with outstanding awards thereunder as of the date hereof, (F) issuances of shares of Common Stock issuable pursuant to an agreement agreements in effect as of the date hereofhereof or amendments related thereto, (G) issuances of shares of Common Stock in connection with strategic acquisitions, or (H) issuances of shares of Common Stock subject to shareholder approval; provided provided, however, that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; andcase of clause (D) above, provided further that the conversion or exercise (no shares of Common Stock shall be issued as the case may be) a result of any an amendment to such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on securities after the date immediately hereof and prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none expiration of the terms or conditions of any such Convertible Securities are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; (iii) the issuance of securities to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Sharesrestricted period.
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Sources: Securities Purchase Agreement (Cell Therapeutics Inc)
Additional Issuance of Securities. The Company agrees that during for the period commencing on the date hereof and ending on the date immediately following the ninety (90) day anniversary of the Closing Date (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, debt (with or related to equity)any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the following: issuance of (A) (i) issuances shares of Common Stock, Options (as defined in the Warrant), stock appreciation rights, restricted shares of Common Stock, restricted stock units and other stock-based awards to directors, officers, employees or consultants of the Company or any of its Subsidiaries in their capacity as such pursuant to acquisitionsan Approved Stock Plan (as defined below) or shares issued prior to the date hereof pursuant to any emplyment agreement of the Company, joint venturesprovided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such Options) after the date hereof pursuant to this clause (A) do not, license arrangementsin the aggregate, leasing arrangements exceed 25 million shares of Common Stock and similar transaction arrangements; (2) the exercise price of any such Options is not lowered, none of such Options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Options are otherwise materially changed in any manner that adversely affects any of the Buyers, or (ii) an issuance shares of Common Stock, Options (as defined in the Warrant), stock appreciation rights, restricted shares of Common Stock, restricted stock units and other stock-based awards to directors, officers, employees or consultants of the Company or any of its Subsidiaries shares issued prior to the date hereof pursuant to any employment agreement of the Company, provided that, the exercise price of any such Options is not lowered, none of such Options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Options are otherwise materially changed in any manner that adversely affects any of the Buyers; (B) shares of Common Stock issued upon the conversion or exercise of Convertible Securities issued prior (other than options to the date hereof or Convertible Securities that may be purchase Common Stock issued pursuant to an agreement in effect as of Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof; provided that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities (other than options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (nor is any provision of any such Convertible Securitiesi) above) are amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyerof the Buyers; (iiiC) the shares of Common Stock issuable upon conversion of the Notes or otherwise pursuant to the terms of the Notes, (D) the shares of Common Stock issuable upon exercise of the Warrants and (E) shares of Common Stock or Convertible Securities issued or issuable in connection with strategic alliances, acquisitions, mergers, and strategic partnerships, provided, that (1) the primary purpose of such issuance is not to raise capital, (2) the purchaser or acquirer of the securities in such issuance solely consists of either (x) the actual participants in such strategic alliance or strategic partnership, (y) the actual owners of such assets or securities acquired in such acquisition or merger or (z) the stockholders, partners or members of the foregoing Persons and (3) the number or amount of securities issued to employees, directors and other third parties under an Approved Share Plan; provided that provisions such Person by the Company shall not be disproportionate to such Person’s actual participation in such strategic alliance or strategic partnership or ownership of such assets or securities to be acquired by the Company, as applicable(each of the foregoing in clauses (A) through (E) collectively the “Excluded Securities”). “Approved Share Plan that were in effect on Stock Plan” means any employee benefit plan which has been approved by the date immediately board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of this AgreementCommon Stock and options, remain in effect without amendment in any manner that adversely affects any Buyerstock appreciation rights, including any amendment to increase the number restricted shares of shares issuable thereunderCommon Stock, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amendedrestricted stock units, and other stock based awards may be issued to any employee, officer, director or consultant for services provided to the Company in their capacity as such. “Convertible Securities” means any stock or other security (ivother than Options) that is at any time and under any circumstances, directly or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the issuance holder thereof to acquire, any shares of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant SharesCommon Stock.
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Additional Issuance of Securities. (a) The Company agrees that during for the period commencing on the date hereof until the earlier of (i) ninety (90) days following the Effective Date and (ii) the date on which no Common Warrants are outstanding (the “Restricted Period”), the Company shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Securities Act), any Convertible Securitiesconvertible securities, debt (with or related to equity), any preferred stock or any purchase rights) (“Additional Issuance”). Notwithstanding the foregoing, this Section 4(j4.12(a) shall not apply in respect of the following: (i) issuances pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an issuance of shares of Common Stock issued upon the conversion or exercise of Convertible Securities convertible securities issued prior to the date hereof or Convertible Securities convertible securities that may be issued pursuant to an agreement in effect as of the date hereof; provided that definitive terms of such Convertible Securities convertible securities (whether such Convertible Securities convertible securities have been issued or will be issued) have been disclosed in the SEC DocumentsPublic Reports; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security convertible security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security convertible security that were in effect (or disclosed in the SEC DocumentsPublic Reports) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities convertible securities is not lowered, none of such Convertible Securities convertible securities are (nor is any provision of any such Convertible Securitiesconvertible securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities convertible securities are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any BuyerPurchaser; (iii) the issuance of securities to employees, directors and other third parties under an Approved Share Stock Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Shares; and (v) the issuance of securities pursuant to an equity line of credit or similar arrangement with the Purchaser (each of the foregoing issuances above, an “Exempt Issuance”).
(b) From the date hereof until the earlier of (i) the date on which no Common Warrants are outstanding and (ii) the later of (x) six months from the date hereof and (y) thirty (30) days following the Effective Date, 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 (other than with the Purchaser) or an “at the market offering”, whereby the Company may issue securities at a future determined price, regardless of whether shares pursuant to such agreement have actually been issued and regardless of whether such agreement is subsequently canceled. 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.
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Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent of the Required Holders, issue any Preferred Shares (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Certificate of Designations. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the Applicable Date (provided that such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public Information Failure exists) and during any Measurement Period (as defined in the Certificate of Designations) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible SecuritiesSecurities (as defined below), debt (with or related to equity)any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Additional IssuanceSubsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the following: issuance of Excluded Securities (i) issuances as defined in the Certificate of Designations). “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) an issuance of which shares of Common Stock issued upon the conversion or exercise of Convertible Securities issued prior and standard options to the date hereof or Convertible Securities that purchase Common Stock may be issued pursuant to an agreement in effect as of the date hereof; any employee, officer or director for services provided that definitive terms of such Convertible Securities (whether such Convertible Securities have been issued or will be issued) have been disclosed in the SEC Documents; and, provided further that the conversion or exercise (as the case may be) of any such Convertible Security is made solely pursuant to the conversion or exercise (Company in their capacity as the case may be) provisions of such Convertible Security that were in effect (or disclosed in the SEC Documents) on the date immediately prior to the date of this Agreement, the conversion or exercise price of any such Convertible Securities is not lowered, none of such Convertible Securities are (nor is any provision of any such such. “Convertible Securities) amended ” means any capital stock or waived in any manner (whether by other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof) thereof to increase the number of shares issuable thereunder and none acquire, any capital stock or other security of the terms Company (including, without limitation, Common Stock) or conditions any of any such Convertible Securities are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any Buyer; (iii) the issuance of securities to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement, remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder, except for the proposal included in the Company’s preliminary proxy statement filed with the SEC on December 30, 2024 for the annual stockholder meeting to increase the number of shares issuable under the 2022 Equity Incentive Plan, as amended, and (iv) the issuance of the Convertible Notes, the Conversion Shares, the Warrants and the Warrant Sharesits Subsidiaries.
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