Common use of Certain Issuances Clause in Contracts

Certain Issuances. If at any time or from time to time the Company shall issue (other than in a Permitted Issuance) (i) Common Stock at a price per share that is lower at the date such issuance becomes a binding commitment of the Company than the then current Exercise Price or (ii) rights, options, or warrants for, or securities convertible or exchangeable into, Common Stock entitling the holders thereof to subscribe for or purchase shares of Common Stock at a price per share that is lower at the date such issuance becomes a binding commitment of the Company than the then current Exercise Price, then the number of shares of Common Stock thereafter purchasable upon the exercise of each Warrant shall be determined by multiplying the number of shares of Common Stock theretofore purchasable upon exercise of each Warrant by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on the date of issuance of such Common Stock, rights, options, warrants, or convertible or exchangeable securities (assuming the exercise or conversion of all then outstanding rights, options, warrants or convertible or exchangeable securities) plus the number of additional shares of Common Stock offered for subscription or purchase or into which such securities are convertible or exchangeable, and the denominator of which shall be the number of shares of Common Stock outstanding on the date of issuance of such Common Stock, rights, options, warrants, or convertible or exchangeable securities (assuming the exercise or conversion of all then outstanding rights, options, warrants or convertible or exchangeable securities) plus the total number of shares of Common Stock that could be purchased with the aggregate consideration received through issuance of such Common Stock, rights, options, warrants, or convertible or exchangeable securities at the then current Exercise Price. In the event of any such adjustment, the Exercise Price shall be adjusted to a number determined by dividing the Exercise Price immediately before such date of issuance by the aforementioned fraction. Such adjustment shall be made whenever such shares of Common Stock, rights, options, warrants, or convertible or exchangeable securities are issued and shall become effective retroactively immediately after the date on which such Persons became entitled to receive such shares of Common Stock, rights, options, warrants or convertible or exchangeable securities. This Section 5.03 shall apply regardless of whether the Common Stock, rights, options, warrants or convertible or exchangeable securities are issued together with other obligations or securities, and regardless of whether any rights, options, or warrants are detachable or not detachable from other obligations or securities, provided, however, there shall be no adjustment under this Section 5.03 upon an issuance of rights, warrants, options or convertible securities as compensation in lieu of cash in connection with any financing transaction including commercial bank facilities, bridge financing commitments or arrangements or other issuances of primary debt obligations or securities. If any Common Stock, rights, options, warrants or convertible or exchangeable securities are issued together with other obligations or securities, then an allocation shall be made of the aggregate consideration received as between such Common Stock, rights, options, warrants or convertible or exchangeable securities, on the one hand, and such other obligations or securities, on the other hand (as determined in good faith by the Board of Directors, whose determination shall be evidenced by a board resolution, a copy of which will be sent to Holders upon request), to determine a price per share for such Common Stock, rights, options, warrants or convertible or exchangeable securities for the purposes of this Section 5.03. This Section 5.03 shall apply with equal force and effect to any amendment, revision, adjustment, or other modification of the terms of any outstanding rights, options, or warrants for, or securities convertible or exchangeable into, Common Stock if and to the extent that such amendment, revision, adjustment, or other modification has the effect of allowing the holders thereof to subscribe for or purchase shares of Common Stock at a price per share that is lower at the date such modification becomes a binding obligation of the Company than the then current Exercise Price, to the extent and only to the extent that such rights, options, warrants or convertible or exchangeable securities were not issued in a Permitted Issuance. No adjustment shall be made pursuant to this Section 5.03 that would have the effect of decreasing the number of shares of Common Stock purchasable upon exercise of each Warrant or of increasing the Exercise Price.

Certain Issuances. If (a) Without duplication of any other items contained in the Warrant, if at any time or from time to time the Company shall issue (other than in a Permitted Issuance) (i) Common Stock at a price per share that is lower at the date of such issuance becomes a binding commitment of the Company than the then current Exercise Price Fair Market Value or (ii) rights, options, or warrants for, or securities convertible or exchangeable into, Common Stock entitling the holders thereof to subscribe for or purchase shares of Common Stock at a price per share that is lower at the date of such issuance becomes a binding commitment of the Company than the then current Exercise PriceFair Market Value, then the number of shares of Common Stock thereafter purchasable upon the exercise of each the Warrant shall be determined by multiplying the number of shares of Common Stock theretofore purchasable upon exercise of each the Warrant by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on the date of issuance of such Common Stock, rights, options, warrants, or convertible or exchangeable securities (assuming the exercise or conversion of all then outstanding rights, options, warrants or convertible or exchangeable securities) plus the number of additional shares of Common Stock offered for subscription or purchase or into which such securities are convertible or exchangeable, and the denominator of which shall be the number of shares of Common Stock outstanding on the date of issuance of such Common Stock, rights, options, warrants, or convertible or exchangeable securities (assuming the exercise or conversion of all then outstanding rights, options, warrants or convertible or exchangeable securities) plus the total number of shares of Common Stock that could be purchased with the aggregate consideration received through issuance of such Common Stock, rights, options, warrants, or convertible or exchangeable securities at the then current Exercise Price. In the event of any such adjustment, the Exercise Price shall be adjusted to a number determined by dividing the Exercise Price immediately before such date of issuance by the aforementioned fraction. Such adjustment shall be made whenever such shares of Common Stock, rights, options, warrants, or convertible or exchangeable securities are issued and shall become effective retroactively immediately after the date on which such Persons became entitled to receive such shares of Common Stock, rights, options, warrants or convertible or exchangeable securities. . (b) This Section 5.03 4.6 shall not apply regardless to issuances of whether the Common Stock, rights, options, warrants warrants, or convertible or exchangeable securities are issued together with other obligations resulting from or securities, and regardless of whether any rights, options, or warrants are detachable or not detachable from other obligations or securities, provided, however, there shall be no adjustment under this Section 5.03 upon in connection with: (i) an issuance of Common Stock, rights, warrants, options and/or convertible or convertible exchangeable securities as compensation in lieu of cash in connection with any financing transaction including transaction, including, without limitation, senior or subordinated notes, securitizations or similar transactions, commercial bank or non-bank facilities, commitments or arrangements, bridge financing or back-stop facilities, commitments or arrangements, whole-loan purchase facilities, commitments or arrangements, forward purchase facilities, commitments or arrangements, or other similar facilities, commitments, arrangements or other issuances of primary debt obligations or securities. , (ii) the conversion or exchange of any of the Company’s preferred stock, warrants, options or other convertible or exchangeable securities, provided, such preferred stock, warrants, options or other convertible or exchangeable securities are outstanding as of the date of this Warrant or were issued in connection with a transaction set out in Section 4.6(b)(i), (iii) the grant or exercise of any stock options, restricted stock, restricted stock units, stock appreciation rights or other forms of stock or stock-based rights granted to officers, directors or employees of the Company pursuant to a stock option plan, benefit plan or incentive plan of the Company, whether in effect as of the date of this Warrant or approved by the Board of Directors of the Company after the date of this Warrant, (iv) the exercise of the Warrant, (v) a Merger or Reorganization, (vi) a bona fide firm commitment public offering or a best efforts public offering of the Common Stock of the Company, any of which that is consummated more than ninety (90) days following the date hereof, where the issuance price for shares of Common Stock in such offering is not more than 10% less than the closing sale price for the shares of Common Stock of the Company on the day that the issuance price in such offering is determined, on and as reported by the principal securities exchange on which the Common Stock is then listed or admitted to trading, or (vii) the grant or issuance of rights pursuant to a shareholder rights plan. (c) If any Common Stock, rights, options, warrants or convertible or exchangeable securities are issued together with other obligations or securities, then an allocation shall be made of the aggregate consideration received as between such Common Stock, rights, options, warrants or convertible or exchangeable securities, on the one hand, and such other obligations or securities, on the other hand (as determined in good faith and in a commercially reasonable manner by the Board of Directors, whose determination shall be evidenced by a board resolution, a copy of which will be sent to Holders upon request), to determine a price per share for such Common Stock, rights, options, warrants or convertible or exchangeable securities for the purposes of this Section 5.034.6. This Section 5.03 4.6 shall apply with equal force and effect to any amendment, revision, adjustment, or other modification of the terms of any outstanding rights, options, or warrants for, or securities convertible or exchangeable into, Common Stock if and to the extent that such amendment, revision, adjustment, or other modification has the effect of allowing the holders thereof to subscribe for or purchase shares of Common Stock at a price per share that is lower at the date of such modification becomes a binding obligation of the Company than the then current Exercise PriceFair Market Value, subject to the extent and only to the extent that such rights, options, warrants or convertible or exchangeable securities were not issued in a Permitted Issuanceprovisions of Section 4.6(b). No adjustment shall be made pursuant to this Section 5.03 4.6 that would have the effect of decreasing the number of shares of Common Stock purchasable upon exercise of each the Warrant or of increasing the Exercise Price.

Certain Issuances. If (a) Without duplication of any other items contained in the Warrant, if at any time or from time to time the Company shall issue (other than in a Permitted Issuance) (i) Common Stock at a price per share that is lower at the date of such issuance becomes a binding commitment of the Company than the then current Exercise Price Fair Market Value or (ii) rights, options, or warrants for, or securities convertible or exchangeable into, Common Stock entitling the holders thereof to subscribe for or purchase shares of Common Stock at a price per share that is lower at the date of such issuance becomes a binding commitment of the Company than the then current Exercise PriceFair Market Value, then the number of shares of Common Stock thereafter purchasable upon the exercise of each the Warrant shall be determined by multiplying the number of shares of Common Stock theretofore purchasable upon exercise of each the Warrant by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on the date of issuance of such Common Stock, rights, options, warrants, or convertible or exchangeable securities (assuming the exercise or conversion of all then outstanding rights, options, warrants or convertible or exchangeable securities) plus the number of additional shares of Common Stock offered for subscription or purchase or into which such securities are convertible or exchangeable, and the denominator of which shall be the number of shares of Common Stock outstanding on the date of issuance of such Common Stock, rights, options, warrants, or convertible or exchangeable securities (assuming the exercise or conversion of all then outstanding rights, options, warrants or convertible or exchangeable securities) plus the total number of shares of Common Stock that could be purchased with the aggregate consideration received through issuance of such Common Stock, rights, options, warrants, or convertible or exchangeable securities at the then current Exercise Price. In the event of any such adjustment, the Exercise Price shall be adjusted to a number determined by dividing the Exercise Price immediately before such date of issuance by the aforementioned fraction. Such adjustment shall be made whenever such shares of Common Stock, rights, options, warrants, or convertible or exchangeable securities are issued and shall become effective retroactively immediately after the date on which such Persons became entitled to receive such shares of Common Stock, rights, options, warrants or convertible or exchangeable securities. . (b) This Section 5.03 4.6 shall not apply regardless to issuances of whether the Common Stock, rights, options, warrants warrants, or convertible or exchangeable securities are issued together with other obligations resulting from or securities, and regardless of whether any rights, options, or warrants are detachable or not detachable from other obligations or securities, provided, however, there shall be no adjustment under this Section 5.03 upon in connection with: (i) an issuance of Common Stock, rights, warrants, options and/or convertible or convertible exchangeable securities as compensation in lieu of cash in connection with any financing transaction including transaction, including, without limitation, senior or subordinated notes, securitizations or similar transactions, commercial bank or non-bank facilities, commitments or arrangements, bridge financing or back-stop facilities, commitments or arrangements, whole-loan purchase facilities, commitments or arrangements, forward purchase facilities, commitments or arrangements, or other similar facilities, commitments, arrangements or other issuances of primary debt obligations or securities. , (ii) the conversion or exchange of any of the Company’s preferred stock, warrants, options or other convertible or exchangeable securities, provided, such preferred stock, warrants, options or other convertible or exchangeable securities are outstanding as of the date of this Agreement or were issued in connection with a transaction set out in Section 4.6(b)(i), (iii) the grant or exercise of any stock options, restricted stock, restricted stock units, stock appreciation rights or other forms of stock or stock-based rights granted to officers, directors or employees of the Company pursuant to a stock option plan, benefit plan or incentive plan of the Company, whether in effect as of the date of this Agreement or approved by the Board of Directors of the Company after the date of this Agreement, (iv) the exercise of the Warrant, (v) a Merger or Reorganization, (vi) a bona fide firm commitment public offering of the Common Stock of the Company that is consummated more than ninety (90) days following the date hereof, where the issuance price for shares of Common Stock in such offering is not more than 10% less than the closing sale price for the shares of Common Stock of the Company on the day that the issuance price in such offering is determined, on and as reported by the principal securities exchange on which the Common Stock is then listed or admitted to trading, or (vii) the grant or issuance of rights pursuant to a shareholder rights plan. (c) If any Common Stock, rights, options, warrants or convertible or exchangeable securities are issued together with other obligations or securities, then an allocation shall be made of the aggregate consideration received as between such Common Stock, rights, options, warrants or convertible or exchangeable securities, on the one hand, and such other obligations or securities, on the other hand (as determined in good faith and in a commercially reasonable manner by the Board of Directors, whose determination shall be evidenced by a board resolution, a copy of which will be sent to Holders upon request), to determine a price per share for such Common Stock, rights, options, warrants or convertible or exchangeable securities for the purposes of this Section 5.034.6. This Section 5.03 4.6 shall apply with equal force and effect to any amendment, revision, adjustment, or other modification of the terms of any outstanding rights, options, or warrants for, or securities convertible or exchangeable into, Common Stock if and to the extent that such amendment, revision, adjustment, or other modification has the effect of allowing the holders thereof to subscribe for or purchase shares of Common Stock at a price per share that is lower at the date of such modification becomes a binding obligation of the Company than the then current Exercise PriceFair Market Value, subject to the extent and only to the extent that such rights, options, warrants or convertible or exchangeable securities were not issued in a Permitted Issuanceprovisions of Section 4.6(b). No adjustment shall be made pursuant to this Section 5.03 4.6 that would have the effect of decreasing the number of shares of Common Stock purchasable upon exercise of each the Warrant or of increasing the Exercise Price.