Future Financings. Except for (i) issuance of the Underlying Shares; (ii) the issuance of securities upon exercise or conversion of the Company's options, warrants or other convertible securities outstanding as of the date hereof and listed on Schedule 2(c); (iii) the grant of additional options or warrants, or the issuance of additional securities, under any Company stock or compensation plan pursuant to which Common Stock may be issued to any employee, officer, director or consultant of the Company which is either (a) approved by the stockholders of the Company or (b) approved by the compensation committee of the Company's Board of Directors for legitimate compensation purposes which provides for the purchase of the Common Stock at a purchase price of no less than 85% of the market price of the Common Stock on the date of issuance of such option, warrant, or other security; (iv) shares of Common Stock issued or deemed to have been issued in a Strategic Venture (as defined below); (v) shares of Common Stock issued or deemed to have been issued as consideration for an acquisition by the Company of a division, assets or business (or stock constituting any portion thereof) from another person; (vi) securities sold by the Company in a firm commitment underwritten public offering excluding a continuous offering pursuant to Rule 415 under the Securities Act; (vii) the issuance of Common Stock pursuant to an equity line of credit arrangement (an "EQUITY LINE"); provided that the Company does not exercise its option to make draw downs under the Equity Line until at least thirty (30) days following the effectiveness of the Registration Statement (as defined herein); or (viii) the issuance by any Subsidiary of its capital stock or securities convertible into its capital stock ("Subsidiary Securities"); provided that the Subsidiary Securities are not convertible into, or otherwise exchangeable for, Common Stock, the Company will not, without the prior written consent of Rose Xxxx, xxgotiate or contract with any party to obtain additional equity financing (including debt financing with an equity component) that involves (A) the issuance of Common Stock (whether upon conversion or exercise of a security convertible into or exercisable for Common Stock ("CONVERTIBLE SECURITIES") or otherwise) at a discount to the market price of the Common Stock on the date of issuance thereof or, in the case of Convertible Securities, the date of issuance of such Convertible Securities (in each case taking into account the value of any warrants or options to acquire Common Stock issued in connection therewith) or where the issuance price of such Common Stock is subject to reduction in the future or (B) the issuance of Convertible Securities that are convertible into an indeterminate number of shares of Common Stock or where the issuance price of the Common Stock upon conversion or exercise of such Convertible Securities (including, based upon any conversion, exchange or reset formula) changes at any time after the date of issuance of such Convertible Securities, during the period (the "LOCK-UP PERIOD") beginning on the Closing Date and ending one hundred eighty (180) days from the date the Registration Statement (as defined in the Registration Rights Agreement) is declared effective (plus any days after the Registration Statement is initially declared effective in which sales cannot be made thereunder). In addition, subject to the exceptions described in clauses (i) through (vii) of the first sentence of this Section 3.9, the Company will not conduct any equity financing (including debt with an equity component) ("FUTURE OFFERINGS") during the period beginning on the Closing Date and ending one hundred eighty-five (185) days after the end of the Lock-up Period (plus any days after the Registration Statement is initially declared effective in which sales cannot be made thereunder) unless it shall have first delivered to Rose Xxxx, xx least fifteen (15) business days prior to the closing of such Future Offering, written notice
Appears in 1 contract
Future Financings. Except From the Closing Date until 90 days after the Effective Date, other than as contemplated by this Agreement, neither the Company nor any Subsidiary shall issue or sell any Capital Shares or Capital Shares Equivalents. Notwithstanding anything herein to the contrary, the 90 day period set forth in this Section 4.13 shall be extended for the number of Trading Days during such period in which (iy) issuance trading in the Common Stock is suspended by any Principal Market, or (z) following the Effective Date, the Registration Statement is not effective or the prospectus included in the Registration Statement may not be used by the Purchasers for the resale of the Shares and Underlying Shares; (ii) . Notwithstanding anything to the issuance of securities upon exercise or conversion of contrary herein, this Section 4.13 shall not apply to the Company's options, warrants or other convertible securities outstanding as of the date hereof and listed on Schedule 2(c); (iii) the grant of additional options or warrants, or the issuance of additional securities, under any Company stock or compensation plan pursuant to which Common Stock may be issued to any employee, officer, director or consultant of the Company which is either following (a) approved by the stockholders of the Company granting or (b) approved by the compensation committee of the Company's Board of Directors for legitimate compensation purposes which provides for the purchase of the Common Stock at a purchase price of no less than 85% of the market price of the Common Stock on the date of issuance of such option, warrant, or other security; (iv) shares of Common Stock issued or deemed to have been issued in a Strategic Venture (as defined below); (v) shares of Common Stock issued or deemed to have been issued as consideration for an acquisition by the Company of a division, assets or business (or stock constituting any portion thereof) from another person; (vi) securities sold by the Company in a firm commitment underwritten public offering excluding a continuous offering pursuant to Rule 415 under the Securities Act; (vii) the issuance of Common Stock pursuant to an equity line of credit arrangement (an "EQUITY LINE"); provided that the Company does not exercise its option to make draw downs under the Equity Line until at least thirty (30) days following the effectiveness of the Registration Statement (as defined herein); or (viii) the issuance by any Subsidiary of its capital stock or securities convertible into its capital stock ("Subsidiary Securities"); provided that the Subsidiary Securities are not convertible into, or otherwise exchangeable for, Common Stock, the Company will not, without the prior written consent of Rose Xxxx, xxgotiate or contract with any party to obtain additional equity financing (including debt financing with an equity component) that involves (A) the issuance of Common Stock (whether upon conversion or exercise of a security convertible into or exercisable for Common Stock ("CONVERTIBLE SECURITIES") or otherwise) at a discount to the market price of the Common Stock on the date of issuance thereof or, in the case of Convertible Securities, the date of issuance of such Convertible Securities (in each case taking into account the value of any warrants or options to acquire Common Stock issued in connection therewith) or where the issuance price of such Common Stock is subject to reduction in the future or (B) the issuance of Convertible Securities that are convertible into an indeterminate number of shares of Common Stock or where options (or exercise thereof) to or by employees, officers, directors, and consultants (provided that in the case of consultants, such issuance of Capital Shares and grants of Capital Share Equivalents does not exceed, in the aggregate, 200,000 Capital Shares or Capital Shares Equivalents convertible into or exchangeable for 200,000 Capital Shares per any 12 month period) of the Company pursuant to any stock option plan or employee incentive plan or agreement duly adopted or approved by a majority of the non-employee members of the Board of Directors of the Company or a majority of the members of a committee of non-employee directors established for such purpose, or (b) the exercise of a Debenture or any other security issued by the Company in connection with the offer and sale of this Company's securities pursuant to the Transaction Documents, or (c) the exercise of or conversion of any Capital Shares Equivalents issued and outstanding on the Closing Date, provided that such securities have not been amended since the Closing Date in order to reduce the effective exercise price, increase the number of shares issuable or accelerate the date on which such Capital Share Equivalents may be exercised, or (d) the issuance price of Capital Shares or Capital Shares Equivalents in connection with acquisitions, strategic investments or strategic partnering arrangements, the primary purpose of which is not to raise capital, or subsequent exercise of any such Capital Share Equivalents. In addition to the limitations set forth herein, from the Closing Date until such time as the Purchasers no longer hold any of the Securities, the Company shall be prohibited from effecting or entering into an agreement to effect any Subsequent Financing (as defined in Section 4.14) involving a "Variable Rate Transaction" or an "MFN Transaction" (each as defined below). The term "Variable Rate Transaction" shall mean a transaction in which the Company issues or sells (i) any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive additional shares of, Common Stock upon conversion either (A) at a conversion, exercise or exercise of such Convertible Securities (including, exchange rate or other price that is based upon any conversion, exchange and/or varies with the trading prices of or reset formula) changes quotations for the shares of Common Stock at any time after the date of initial issuance of such Convertible Securitiesdebt or equity securities, during the period or (the "LOCK-UP PERIOD"B) beginning on the Closing Date and ending one hundred eighty (180) days from the with a conversion, exercise or exchange price that is subject to being reset at some future date the Registration Statement (as defined in the Registration Rights Agreement) is declared effective (plus any days after the Registration Statement is initially declared effective 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. The term "MFN Transaction" shall mean a transaction in which sales cannot be made thereunder)the Company issues or sells any securities in a capital raising transaction or series of related transactions which grants to an investor the right to receive additional shares based upon future transactions of the Company on terms more favorable than those granted to such investor in such offering. In addition, subject unless Shareholder Approval has been obtained and deemed effective in accordance with Section 4.5(c), the Company shall not make any issuance whatsoever of Capital Shares or Capital Shares Equivalents which would cause any adjustment of the Set Price (other than pursuant to the exceptions described in clauses (i) through (viiSection 4(c)(ii) of the first sentence Debentures) to the extent the holders of this Debentures would not be permitted, pursuant to Section 3.9, the Company will not conduct any equity financing (including debt with an equity component4(a)(ii)(B) ("FUTURE OFFERINGS") during the period beginning on the Closing Date and ending one hundred eighty-five (185) days after the end of the Lock-up Period (plus Debenture, to convert their respective outstanding Debentures and exercise their respective Warrants in full, ignoring for such purposes any days after the Registration Statement is initially declared effective in which sales cannot be made thereunder) unless it shall have first delivered to Rose Xxxx, xx least fifteen (15) business days prior to the closing of such Future Offering, written noticeconversion or exercise limitations therein.
Appears in 1 contract
Samples: Securities Purchase Agreement (Interactive Systems Worldwide Inc /De)
Future Financings. Except From the date hereof until 90 days after the Effective Date, other than as contemplated by this Agreement, neither the Company nor any Subsidiary (with respect to Capital Shares Equivalents) shall issue or sell any Capital Shares or Capital Shares Equivalents (other than units of limited partnership issued by U.S. Restaurant Properties Operating L.P. in the ordinary course of acquiring properties) entitling any Person to acquire shares of Common Stock. Notwithstanding anything herein to the contrary, the 30 day period set forth in this Section 4.7 shall be extended for the number of Trading Days during such period in which (i) issuance trading in the Common Stock is suspended by any Principal Market, or (ii) following the Effective Date, the Registration Statement is not effective or the prospectus included in the Registration Statement may not be used by each Purchaser for the resale of the Underlying Shares; (ii) . Notwithstanding anything to the issuance of securities upon exercise or conversion of contrary herein, this Section 4.7 shall not apply to the Company's options, warrants or other convertible securities outstanding as of the date hereof and listed on Schedule 2(c); (iii) the grant of additional options or warrants, or the issuance of additional securities, under any Company stock or compensation plan pursuant to which Common Stock may be issued to any employee, officer, director or consultant of the Company which is either following (a) approved by the stockholders of the Company granting or (b) approved by the compensation committee of the Company's Board of Directors for legitimate compensation purposes which provides for the purchase of the Common Stock at a purchase price of no less than 85% of the market price of the Common Stock on the date of issuance of such option, warrant, or other security; (iv) shares of Common Stock issued or deemed to have been issued in a Strategic Venture (as defined below); (v) shares of Common Stock issued or deemed to have been issued as consideration for an acquisition by the Company of a division, assets or business (or stock constituting any portion thereof) from another person; (vi) securities sold by the Company in a firm commitment underwritten public offering excluding a continuous offering pursuant to Rule 415 under the Securities Act; (vii) the issuance of Common Stock pursuant to an equity line of credit arrangement (an "EQUITY LINE"); provided that the Company does not exercise its option to make draw downs under the Equity Line until at least thirty (30) days following the effectiveness of the Registration Statement (as defined herein); or (viii) the issuance by any Subsidiary of its capital stock or securities convertible into its capital stock ("Subsidiary Securities"); provided that the Subsidiary Securities are not convertible into, or otherwise exchangeable for, Common Stock, the Company will not, without the prior written consent of Rose Xxxx, xxgotiate or contract with any party to obtain additional equity financing (including debt financing with an equity component) that involves (A) the issuance of Common Stock (whether upon conversion or exercise of a security convertible into or exercisable for Common Stock ("CONVERTIBLE SECURITIES") or otherwise) at a discount to the market price of the Common Stock on the date of issuance thereof or, in the case of Convertible Securities, the date of issuance of such Convertible Securities (in each case taking into account the value of any warrants or options to acquire Common Stock issued in connection therewith) or where the issuance price of such Common Stock is subject to reduction in the future or (B) the issuance of Convertible Securities that are convertible into an indeterminate number of shares of Common Stock or where the issuance price options to employees, officers and directors of the Common Stock upon conversion Company pursuant to any stock option plan or employee incentive plan or agreement duly adopted or approved by a majority of the non-employee members of the Board of Directors of the Company or a majority of the members of a committee of non-employee directors established for such purpose, (b) the exercise of such Convertible Securities any Preferred Stock or any other security issued by the Company in connection with the offer and sale of this Company’s securities pursuant to this Agreement, or (includingc) the exercise of or conversion of any convertible securities, based upon any conversion, exchange options or reset formula) changes at any time after warrants issued and outstanding on the date of issuance of hereof, provided that such Convertible Securities, during the period (the "LOCK-UP PERIOD") beginning on the Closing Date and ending one hundred eighty (180) days from securities have not been amended since the date the Registration Statement (as defined in the Registration Rights Agreement) is declared effective (plus any days after the Registration Statement is initially declared effective in which sales cannot be made thereunder)hereof. In addition, subject unless Stockholder Approval has been obtained and deemed effective in accordance with Section 4.5(d), the Company shall not make any issuance whatsoever of Capital Shares or Capital Shares Equivalents which would cause any adjustment of the Set Price (other than pursuant to the exceptions described in clauses (i) through (viiSection 5(c)(ii) of the first sentence Articles Supplementarys) to the extent the holders of this Preferred Stock would not be permitted, pursuant to Section 3.9, the Company will not conduct any equity financing (including debt with an equity component5(a)(iii) ("FUTURE OFFERINGS") during the period beginning on the Closing Date and ending one hundred eighty-five (185) days after the end of the Lock-up Period (plus any days after the Registration Statement is initially declared effective Articles Supplementarys, to convert their respective outstanding Preferred Stock in which sales cannot be made thereunder) unless it shall have first delivered to Rose Xxxx, xx least fifteen (15) business days prior to the closing of such Future Offering, written noticefull.
Appears in 1 contract
Samples: Securities Purchase Agreement (U S Restaurant Properties Inc)
Future Financings. Except From the Closing Date until 90 days after the Effective Date, other than as contemplated by this Agreement, neither the Company nor any Subsidiary shall issue or sell any Capital Shares or Capital Shares Equivalents. Notwithstanding anything herein to the contrary, the 90 day period set forth in this Section 4.13 shall be extended for the number of Trading Days during such period in which (iy) issuance trading in the Common Stock is suspended by any Principal Market, or (z) following the Effective Date, the Registration Statement is not effective or the prospectus included in the Registration Statement may not be used by the Purchasers for the resale of the Underlying Shares; (ii) . Notwithstanding anything to the issuance of securities upon exercise or conversion of contrary herein, this Section 4.13 shall not apply to the Company's options, warrants or other convertible securities outstanding as of the date hereof and listed on Schedule 2(c); (iii) the grant of additional options or warrants, or the issuance of additional securities, under any Company stock or compensation plan pursuant to which Common Stock may be issued to any employee, officer, director or consultant of the Company which is either following (a) approved by the stockholders of the Company granting or (b) approved by the compensation committee of the Company's Board of Directors for legitimate compensation purposes which provides for the purchase of the Common Stock at a purchase price of no less than 85% of the market price of the Common Stock on the date of issuance of such option, warrant, or other security; (iv) shares of Common Stock issued or deemed to have been issued in a Strategic Venture (as defined below); (v) shares of Common Stock issued or deemed to have been issued as consideration for an acquisition by the Company of a division, assets or business (or stock constituting any portion thereof) from another person; (vi) securities sold by the Company in a firm commitment underwritten public offering excluding a continuous offering pursuant to Rule 415 under the Securities Act; (vii) the issuance of Common Stock pursuant to an equity line of credit arrangement (an "EQUITY LINE"); provided that the Company does not exercise its option to make draw downs under the Equity Line until at least thirty (30) days following the effectiveness of the Registration Statement (as defined herein); or (viii) the issuance by any Subsidiary of its capital stock or securities convertible into its capital stock ("Subsidiary Securities"); provided that the Subsidiary Securities are not convertible into, or otherwise exchangeable for, Common Stock, the Company will not, without the prior written consent of Rose Xxxx, xxgotiate or contract with any party to obtain additional equity financing (including debt financing with an equity component) that involves (A) the issuance of Common Stock (whether upon conversion or exercise of a security convertible into or exercisable for Common Stock ("CONVERTIBLE SECURITIES") or otherwise) at a discount to the market price of the Common Stock on the date of issuance thereof or, in the case of Convertible Securities, the date of issuance of such Convertible Securities (in each case taking into account the value of any warrants or options to acquire Common Stock issued in connection therewith) or where the issuance price of such Common Stock is subject to reduction in the future or (B) the issuance of Convertible Securities that are convertible into an indeterminate number of shares of Common Stock or where options (or exercise thereof) to or by employees, officers, directors, and consultants (provided that in the case of consultants, such issuance price of Capital Shares and grants of Capital Share Equivalents does not exceed, in the aggregate, 200,000 Capital Shares or Capital Shares Equivalents convertible into or exchangeable for 200,000 Capital Shares per any 12 month period) of the Common Stock upon conversion Company pursuant to any stock option plan or employee incentive plan or agreement duly adopted or approved by a majority of the non-employee members of the Board of Directors of the Company or a majority of the members of a committee of non-employee directors established for such purpose, or (b) the exercise of such Convertible Securities the Preferred Stock or any other security issued by the Company in connection with the offer and sale of this Company's securities pursuant to the Transaction Documents, or (including, based upon c) the exercise of or conversion of any conversion, exchange or reset formula) changes at any time after the date of issuance of such Convertible Securities, during the period (the "LOCK-UP PERIOD") beginning Capital Shares Equivalents issued and outstanding on the Closing Date and ending one hundred eighty (180) days from the date the Registration Statement (as defined in the Registration Rights Agreement) is declared effective (plus any days after the Registration Statement is initially declared effective in which sales canDate, provided that such securities have not be made thereunder). In addition, subject to the exceptions described in clauses (i) through (vii) of the first sentence of this Section 3.9, the Company will not conduct any equity financing (including debt with an equity component) ("FUTURE OFFERINGS") during the period beginning on been amended since the Closing Date and ending one hundred eighty-five in order to reduce the effective exercise price, increase the number of shares issuable or accelerate the date on which such Capital Share Equivalents may be exercised, or (185d) days after the end issuance of Capital Shares or Capital Shares Equivalents in connection with acquisitions, strategic investments or strategic partnering arrangements, the Lock-up Period (plus primary purpose of which is not to raise capital, or subsequent exercise of any days after the Registration Statement is initially declared effective in which sales cannot be made thereunder) unless it shall have first delivered to Rose Xxxx, xx least fifteen (15) business days prior such Capital Share Equivalents. In addition to the closing of limitations set forth herein, from the Closing Date until such Future Offering, written noticetime as the Purchasers no longer hold
Appears in 1 contract
Samples: Securities Purchase Agreement (Interactive Systems Worldwide Inc /De)
Future Financings. Except From the date hereof until 90 days after the Effective Date of the initial Registration Statement relating to the Securities issued at the First Closing and, if applicable, from the Second Closing Date until 60 days after the Effective Date of the initial Registration Statement relating to the Securities issued at the Second Closing, neither the Company nor any Subsidiary shall issue or sell any Capital Shares or Capital Shares Equivalents. Notwithstanding anything herein to the contrary, the 90 day period set forth in this Section 4.7 shall be extended for the number of Trading Days during such period in which (iy) issuance trading in the Common Stock is suspended by any Principal Market, or (z) following the Effective Date, the Registration Statement is not effective or the prospectus included in the Registration Statement may not be used by the Purchasers for the resale of the Underlying Shares; (ii) . Notwithstanding anything to the issuance of securities upon exercise or conversion of contrary herein, this Section 4.7 shall not apply to the Company's options, warrants or other convertible securities outstanding as of the date hereof and listed on Schedule 2(c); (iii) the grant of additional options or warrants, or the issuance of additional securities, under any Company stock or compensation plan pursuant to which Common Stock may be issued to any employee, officer, director or consultant of the Company which is either following (a) approved by the stockholders of the Company granting or (b) approved by the compensation committee of the Company's Board of Directors for legitimate compensation purposes which provides for the purchase of the Common Stock at a purchase price of no less than 85% of the market price of the Common Stock on the date of issuance of such option, warrant, or other security; (iv) shares of Common Stock issued or deemed to have been issued in a Strategic Venture (as defined below); (v) shares of Common Stock issued or deemed to have been issued as consideration for an acquisition by the Company of a division, assets or business (or stock constituting any portion thereof) from another person; (vi) securities sold by the Company in a firm commitment underwritten public offering excluding a continuous offering pursuant to Rule 415 under the Securities Act; (vii) the issuance of Common Stock pursuant to an equity line of credit arrangement (an "EQUITY LINE"); provided that the Company does not exercise its option to make draw downs under the Equity Line until at least thirty (30) days following the effectiveness of the Registration Statement (as defined herein); or (viii) the issuance by any Subsidiary of its capital stock or securities convertible into its capital stock ("Subsidiary Securities"); provided that the Subsidiary Securities are not convertible into, or otherwise exchangeable for, Common Stock, the Company will not, without the prior written consent of Rose Xxxx, xxgotiate or contract with any party to obtain additional equity financing (including debt financing with an equity component) that involves (A) the issuance of Common Stock (whether upon conversion or exercise of a security convertible into or exercisable for Common Stock ("CONVERTIBLE SECURITIES") or otherwise) at a discount to the market price of the Common Stock on the date of issuance thereof or, in the case of Convertible Securities, the date of issuance of such Convertible Securities (in each case taking into account the value of any warrants or options to acquire Common Stock issued in connection therewith) or where the issuance price of such Common Stock is subject to reduction in the future or (B) the issuance of Convertible Securities that are convertible into an indeterminate number of shares of Common Stock or where options to employees, officers and directors of the Company pursuant to any stock option plan or employee incentive plan or agreement duly adopted or approved by a majority of the non-employee members of the Board of Directors of the Company or a majority of the members of a committee of non-employee directors established for such purpose, (b) the exercise of a Debenture or any other security issued by the Company in connection with the offer and sale of this Company's securities pursuant to this Agreement, or (c) the exercise of or conversion of any convertible securities, options or warrants issued and outstanding on the date hereof, provided that such securities have not been amended since the date hereof, or (d) the issuance of any securities in connection with acquisitions, strategic investments or strategic partnering arrangements, the primary purpose of which is not to raise capital, or (e) a one-time issuance to Xxxxxx Xxxxx on or prior to the fifth Trading Day after the date hereof of convertible debentures with a principal amount equal to $500,000 and a conversion price equal to the greater of the Set Price and the average of the 5 VWAPs immediately prior to such issuance, otherwise in the form of the Debentures, or (f) prior to the Effective Date of the initial Registration Statement relating to the Securities issued at the First Closing, a one-time issuance of up to $2,000,000 of Capital Shares or Capital Shares Equivalents, provided such securities have an effective price per share of Common Stock of at least $1.75, subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock upon conversion or exercise of such Convertible Securities (including, based upon any conversion, exchange or reset formula) changes at any time that occur after the date of issuance this Agreement and provided the effective price of such Convertible Securitiessecurity is not adjustable thereafter, during other than for stock splits, stock dividends, stock combinations and the period (the "LOCK-UP PERIOD") beginning on the Closing Date and ending one hundred eighty (180) days from the date the Registration Statement (as defined in the Registration Rights Agreement) is declared effective (plus any days after the Registration Statement is initially declared effective in which sales cannot be made thereunder)like. In addition, subject unless Shareholder Approval has been obtained and deemed effective in accordance with Section 4.5(c), the Company shall not make any issuance whatsoever of Capital Shares or Capital Shares Equivalents which would cause any adjustment of the Set Price (other than pursuant to the exceptions described in clauses (i) through (viiSection 4(c)(ii) of the first sentence Debentures) to the extent the holders of this Debentures would not be permitted, pursuant to Section 3.9, the Company will not conduct any equity financing (including debt with an equity component4(a)(ii)(B) ("FUTURE OFFERINGS") during the period beginning on the Closing Date and ending one hundred eighty-five (185) days after the end of the Lock-up Period (plus any days after Debenture, to convert their respective outstanding Debentures and exercise the Registration Statement is initially declared effective Warrants in which sales cannot be made thereunder) unless it shall have first delivered to Rose Xxxx, xx least fifteen (15) business days prior to the closing of such Future Offering, written noticefull.
Appears in 1 contract
Future Financings. Except for (i) issuance of the Underlying Shares; (ii) the issuance of securities upon exercise or conversion of the Company's options, warrants or other convertible securities outstanding as of From the date hereof and listed on Schedule 2(c); (iii) until 90 days after the grant of additional options or warrants, or the issuance of additional securities, under any Company stock or compensation plan pursuant to which Common Stock may be issued to any employee, officer, director or consultant Effective Date of the Company which is either (a) approved by initial Registration Statement relating to the stockholders of Securities, neither the Company nor any Subsidiary shall issue or (b) approved by the compensation committee of the Company's Board of Directors for legitimate compensation purposes which provides for the purchase of the Common Stock at a purchase price of no less than 85% of the market price of the Common Stock on the date of issuance of sell any Capital Shares or Capital Shares Equivalents; PROVIDED, HOWEVER, such option, warrant, or other security; (iv) 90 day period shall be 30 days as it solely relates to up to 34 million shares of Common Stock issued or deemed to have been issued in a Strategic Venture (as defined below); (v) shares of Common Stock issued or deemed to have been issued as consideration for an acquisition by the Company of a division, assets or business (or stock constituting any portion thereof) from another person; (vi) securities sold by the Company in a firm commitment underwritten public offering excluding a continuous offering pursuant by Xxxx Capital Partners, the proceeds of which shall first be applied to Rule 415 under the Securities Act; redemption of all of the securities held at such time by The Sage Group, plc (viior any Affiliates thereof) (the issuance "XXXX OFFERING"). Notwithstanding anything herein to the contrary, the 90 or 30 day period set forth in this Section 4.7, as applicable, shall be extended for the number of Trading Days during such period in which (y) trading in the Common Stock pursuant to an equity line of credit arrangement is suspended by any Principal Market, or (an "EQUITY LINE"); provided that the Company does not exercise its option to make draw downs under the Equity Line until at least thirty (30z) days following the effectiveness of Effective Date, the Registration Statement is not effective or the prospectus included in the Registration Statement may not be used by the Purchasers for the resale of the Underlying Shares. Notwithstanding anything to the contrary herein, this Section 4.7 shall not apply to the following (as defined herein); or (viiia) the granting or issuance by any Subsidiary of its capital stock or securities convertible into its capital stock ("Subsidiary Securities"); provided that the Subsidiary Securities are not convertible into, or otherwise exchangeable for, Common Stock, the Company will not, without the prior written consent of Rose Xxxx, xxgotiate or contract with any party to obtain additional equity financing (including debt financing with an equity component) that involves (A) the issuance of Common Stock (whether upon conversion or exercise of a security convertible into or exercisable for Common Stock ("CONVERTIBLE SECURITIES") or otherwise) at a discount to the market price of the Common Stock on the date of issuance thereof or, in the case of Convertible Securities, the date of issuance of such Convertible Securities (in each case taking into account the value of any warrants or options to acquire Common Stock issued in connection therewith) or where the issuance price of such Common Stock is subject to reduction in the future or (B) the issuance of Convertible Securities that are convertible into an indeterminate number of shares of Common Stock or where options to employees, officers and directors of the Company pursuant to any stock option plan or employee incentive plan or agreement duly adopted or approved by a majority of the non-employee members of the Board of Directors of the Company or a majority of the members of a committee of non-employee directors established for such purpose, (b) the exercise of a Debenture or any other security issued by the Company in connection with the offer and sale of this Company's securities pursuant to this Agreement, (c) the exercise of or conversion of any convertible securities, options or warrants issued and outstanding on the date hereof, provided that such securities have not been amended since the date hereof or (d) the issuance price of any securities in connection with acquisitions, strategic investments or strategic partnering arrangements, the Common Stock upon conversion or exercise primary purpose of such Convertible Securities (including, based upon any conversion, exchange or reset formula) changes at any time after the date of issuance of such Convertible Securities, during the period (the "LOCK-UP PERIOD") beginning on the Closing Date and ending one hundred eighty (180) days from the date the Registration Statement (as defined in the Registration Rights Agreement) which is declared effective (plus any days after the Registration Statement is initially declared effective in which sales cannot be made thereunder)to raise capital. In addition, subject unless Shareholder Approval has been obtained and deemed effective in accordance with Section 4.5(c), the Company shall not make any issuance whatsoever of Capital Shares or Capital Shares Equivalents which would cause any adjustment of the Set Price (other than pursuant to the exceptions described in clauses (i) through (viiSection 4(c)(ii) of the first sentence Debentures) to the extent the holders of this Debentures would not be permitted, pursuant to Section 3.9, the Company will not conduct any equity financing (including debt with an equity component4(a)(ii)(B) ("FUTURE OFFERINGS") during the period beginning on the Closing Date and ending one hundred eighty-five (185) days after the end of the Lock-up Period (plus any days after Debenture, to convert their respective outstanding Debentures and exercise the Registration Statement is initially declared effective Warrants in which sales cannot be made thereunder) unless it shall have first delivered to Rose Xxxx, xx least fifteen (15) business days prior to the closing of such Future Offering, written noticefull.
Appears in 1 contract
Future Financings. Except From the date hereof until 90 days after the Effective Date of the initial Registration Statement relating to the Securities issued at the First Closing and, if applicable, from the Second Closing Date until 90 days after the Effective Date of the initial Registration Statement relating to the Securities issued at the Second Closing, other than as contemplated by this Agreement, neither the Company nor any Subsidiary shall issue or sell any Capital Shares or Capital Shares Equivalents. Notwithstanding anything herein to the contrary, the 90 day period set forth in this Section 4.7 shall be extended for the number of Trading Days during such period in which (iy) issuance trading in the Common Stock is suspended by any Principal Market, or (z) following the Effective Date, the Registration Statement is not effective or the prospectus included in the Registration Statement may not be used by the Purchasers for the resale of the Underlying Shares; (ii) . Notwithstanding the foregoing, this Section 4.7 shall not apply in respect of the issuance of securities upon exercise or conversion of the Company's options, warrants or other convertible securities outstanding as of the date hereof and listed on Schedule 2(c); (iii) the grant of additional options or warrants, or the issuance of additional securities, under any Company stock or compensation plan pursuant to which Common Stock may be issued to any employee, officer, director or consultant of the Company which is either (a) approved by the stockholders of the Company or (b) approved by the compensation committee of the Company's Board of Directors for legitimate compensation purposes which provides for the purchase of the Common Stock at a purchase price of no less than 85% of the market price of the Common Stock on the date of issuance of such option, warrant, or other security; (iv) shares of Common Stock issued or deemed options to have been issued in a Strategic Venture (as defined below); (v) shares employees, consultants, advisors, officers or directors of Common Stock issued or deemed to have been issued as consideration for an acquisition by the Company pursuant to any stock or option plan duly adopted by a majority of the non-employee members of the Board of Directors of the Company or a majority of the members of a divisioncommittee of non-employee directors established for such purpose, assets or business (or stock constituting any portion thereof) from another person; (vib) securities sold upon the exercise of, or in connection with the payment of interest on or redemption of, the Debentures or any Debentures of this series or of any other series or security issued by the Company in a firm commitment underwritten public offering excluding a continuous offering connection with the offer and sale of this Company's securities pursuant to Rule 415 under the Securities Act; (vii) the issuance of Common Stock pursuant to an equity line of credit arrangement (an "EQUITY LINE"); provided that the Company does not exercise its option to make draw downs under the Equity Line until at least thirty (30) days following the effectiveness of the Registration Statement (as defined herein); this Agreement, or (viiic) securities upon the issuance by any Subsidiary of its capital stock or securities convertible into its capital stock ("Subsidiary Securities"); provided that the Subsidiary Securities are not convertible into, or otherwise exchangeable for, Common Stock, the Company will not, without the prior written consent of Rose Xxxx, xxgotiate or contract with any party to obtain additional equity financing (including debt financing with an equity component) that involves (A) the issuance of Common Stock (whether upon conversion or exercise of a security or conversion of any convertible into securities, options or exercisable for Common Stock ("CONVERTIBLE SECURITIES") or otherwise) at a discount to the market price of the Common Stock warrants issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement, (d) securities in connection with acquisitions or strategic investments (including, without limitation, any licensing or distribution arrangements), the primary purpose of which is not to raise capital, (e) securities to financial institutions or lessors in connection with commercial credit arrangements, equipment financings or similar transactions, where the principal consideration for such transaction is not the issuance thereof orof such securities, or (f) up to, in the case aggregate, $2,000,000 of Convertible SecuritiesCapital Shares (not Capital Shares Equivalents), the date of issuance of such Convertible Securities (in each case taking into account the value of any warrants or options to acquire Common Stock issued in connection therewith) or where the issuance a one-time transaction with pre-existing shareholders, for a per share purchase price of such Common Stock is subject to reduction in the future or (B) the issuance of Convertible Securities that are convertible into an indeterminate number of shares of Common Stock or where the issuance price not less than 90% of the Common Stock upon conversion or exercise average of such Convertible Securities (including, based upon any conversion, exchange or reset formula) changes at any time after the date of issuance of such Convertible Securities, VWAPs during the period 5 Trading Days prior to any such transaction (the "LOCK-UP PERIODMarket Price") beginning on along with up to 25% warrant coverage with an exercise price not less than 112% of the Closing Date and ending one hundred eighty then Market Price, which transaction may have registration rights. For purposes of clarification, an issuance pursuant to clause (180f) days from the date the Registration Statement (as defined in the Registration Rights Agreement) is declared effective (plus any days after the Registration Statement is initially declared effective in which sales cannot above shall be made thereunder). In addition, subject to the exceptions described anti-dilution provisions in clauses (i) through (vii) of the first sentence of this Section 3.9, the Company will not conduct any equity financing (including debt with an equity component) ("FUTURE OFFERINGS") during the period beginning on the Closing Date Debentures and ending one hundred eighty-five (185) days after the end of the Lock-up Period (plus any days after the Registration Statement is initially declared effective in which sales cannot be made thereunder) unless it shall have first delivered to Rose Xxxx, xx least fifteen (15) business days prior to the closing of such Future Offering, written noticeWarrants.
Appears in 1 contract
Future Financings. Except From the Closing Date until 90 days after the Effective Date, other than as contemplated by this Agreement, neither the Company nor any Subsidiary shall issue or sell any Capital Shares or Capital Shares Equivalents. Notwithstanding anything herein to the contrary, the 90 day period set forth in this Section 4.13 shall be extended for the number of Trading Days during such period in which (iy) issuance trading in the Common Stock is suspended by any Principal Market, or (z) following the Effective Date, the Registration Statement is not effective or the prospectus included in the Registration Statement may not be used by the Purchasers for the resale of the Underlying Shares; (ii) . Notwithstanding anything to the issuance of securities upon exercise or conversion of contrary herein, this Section 4.13 shall not apply to the Company's options, warrants or other convertible securities outstanding as of the date hereof and listed on Schedule 2(c); (iii) the grant of additional options or warrants, or the issuance of additional securities, under any Company stock or compensation plan pursuant to which Common Stock may be issued to any employee, officer, director or consultant of the Company which is either following (a) approved by the stockholders of the Company granting or (b) approved by the compensation committee of the Company's Board of Directors for legitimate compensation purposes which provides for the purchase of the Common Stock at a purchase price of no less than 85% of the market price of the Common Stock on the date of issuance of such option, warrant, or other security; (iv) shares of Common Stock issued or deemed to have been issued in a Strategic Venture (as defined below); (v) shares of Common Stock issued or deemed to have been issued as consideration for an acquisition by the Company of a division, assets or business (or stock constituting any portion thereof) from another person; (vi) securities sold by the Company in a firm commitment underwritten public offering excluding a continuous offering pursuant to Rule 415 under the Securities Act; (vii) the issuance of Common Stock pursuant to an equity line of credit arrangement (an "EQUITY LINE"); provided that the Company does not exercise its option to make draw downs under the Equity Line until at least thirty (30) days following the effectiveness of the Registration Statement (as defined herein); or (viii) the issuance by any Subsidiary of its capital stock or securities convertible into its capital stock ("Subsidiary Securities"); provided that the Subsidiary Securities are not convertible into, or otherwise exchangeable for, Common Stock, the Company will not, without the prior written consent of Rose Xxxx, xxgotiate or contract with any party to obtain additional equity financing (including debt financing with an equity component) that involves (A) the issuance of Common Stock (whether upon conversion or exercise of a security convertible into or exercisable for Common Stock ("CONVERTIBLE SECURITIES") or otherwise) at a discount to the market price of the Common Stock on the date of issuance thereof or, in the case of Convertible Securities, the date of issuance of such Convertible Securities (in each case taking into account the value of any warrants or options to acquire Common Stock issued in connection therewith) or where the issuance price of such Common Stock is subject to reduction in the future or (B) the issuance of Convertible Securities that are convertible into an indeterminate number of shares of Common Stock or where options (or exercise thereof) to or by employees, officers, directors, and consultants (provided that in the case of consultants, such issuance of Capital Shares and grants of Capital Share Equivalents does not exceed, in the aggregate, 200,000 Capital Shares or Capital Shares Equivalents convertible into or exchangeable for 200,000 Capital Shares per any 12 month period) of the Company pursuant to any stock option plan or employee incentive plan or agreement duly adopted or approved by a majority of the non-employee members of the Board of Directors of the Company or a majority of the members of a committee of non-employee directors established for such purpose, or (b) the exercise of the Preferred Stock or any other security issued by the Company in connection with the offer and sale of this Company's securities pursuant to the Transaction Documents, or (c) the exercise of or conversion of any Capital Shares Equivalents issued and outstanding on the Closing Date, provided that such securities have not been amended since the Closing Date in order to reduce the effective exercise price, increase the number of shares issuable or accelerate the date on which such Capital Share Equivalents may be exercised, or (d) the issuance price of Capital Shares or Capital Shares Equivalents in connection with acquisitions, strategic investments or strategic partnering arrangements, the primary purpose of which is not to raise capital, or subsequent exercise of any such Capital Share Equivalents ((a)-(d), each, an "Exempt Issuance"). In addition to the limitations set forth herein, from the Closing Date until such time as the Purchasers no longer hold any of the Securities, the Company shall be prohibited from effecting or entering into an agreement to effect any Subsequent Financing (as defined in Section 4.14) involving a "Variable Rate Transaction" or an "MFN Transaction" (each as defined below). The term "Variable Rate Transaction" shall mean a transaction in which the Company issues or sells (i) any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive additional shares of, Common Stock upon conversion either (A) at a conversion, exercise or exercise of such Convertible Securities (including, exchange rate or other price that is based upon any conversion, exchange and/or varies with the trading prices of or reset formula) changes quotations for the shares of Common Stock at any time after the date of initial issuance of such Convertible Securitiesdebt or equity securities, during the period or (the "LOCK-UP PERIOD"B) beginning on the Closing Date and ending one hundred eighty (180) days from the with a conversion, exercise or exchange price that is subject to being reset at some future date the Registration Statement (as defined in the Registration Rights Agreement) is declared effective (plus any days after the Registration Statement is initially declared effective 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. The term "MFN Transaction" shall mean a transaction in which sales cannot be made thereunder)the Company issues or sells any securities in a capital raising transaction or series of related transactions which grants to an investor the right to exchange their securities for securities issued in future transactions of the Company on terms more favorable than those granted to such investor in their original offering. In addition, subject unless Shareholder Approval has been obtained and deemed effective in accordance with Section 4.5(c), the Company shall not make any issuance whatsoever of Capital Shares or Capital Shares Equivalents which would cause any adjustment of the Conversion Price (other than pursuant to the exceptions described in clauses (i) through (viiSection 7(a) of the first sentence Certificate of this Designation) to the extent the holders of the Preferred Stock would not be permitted, pursuant to Section 3.96(d) of the Certificate of Designation, to convert their respective outstanding Preferred Stock and exercise their respective Warrants in full, ignoring for such purposes any conversion or exercise limitations therein. Additionally, unless Shareholder Approval has been obtained and deemed effective, the Company will shall not conduct make any equity financing (including debt with an equity component) ("FUTURE OFFERINGS") during the period beginning on the Closing Date and ending one hundred eighty-five (185) days after the end issuance whatsoever of Common Stock or Common Stock Equivalents which would cause any adjustment of the Lock-up Period (plus any days after Conversion Price to the Registration Statement is initially declared effective in which sales canextent the holders of Preferred Stock would not be made thereunderpermitted, pursuant to Section 6(d) unless it of the Certificate of Designation, to convert their respective outstanding Debentures and exercise their respective Warrants in full, ignoring for such purposes the conversion or exercise limitations therein. Any Purchaser shall have first delivered be entitled to Rose Xxxxobtain injunctive relief against the Company to preclude any such issuance, xx least fifteen (15) business days prior which remedy shall be in addition to the closing of such Future Offering, written noticeany right to collect damages.
Appears in 1 contract
Samples: Securities Purchase Agreement (Interactive Systems Worldwide Inc /De)
Future Financings. Except From the date hereof until 90 days after the Effective Date, other than as contemplated by this Agreement, neither the Company nor any Subsidiary shall issue or sell any Capital Shares or Capital Shares Equivalents. Notwithstanding anything herein to the contrary, the 120 day period set forth in this Section 4.13 shall be extended for the number of Trading Days during such period in which (iy) issuance trading in the Common Stock is suspended by any Principal Market, or (z) following the Effective Date, the Registration Statement is not effective or the prospectus included in the Registration Statement may not be used by the Purchasers for the resale of the Underlying Shares; (ii) . Notwithstanding anything to the issuance of securities upon exercise or conversion of contrary herein, this Section 4.13 shall not apply to the Company's options, warrants or other convertible securities outstanding as of the date hereof and listed on Schedule 2(c); (iii) the grant of additional options or warrants, or the issuance of additional securities, under any Company stock or compensation plan pursuant to which Common Stock may be issued to any employee, officer, director or consultant of the Company which is either following (a) approved by the stockholders of the Company granting or (b) approved by the compensation committee of the Company's Board of Directors for legitimate compensation purposes which provides for the purchase of the Common Stock at a purchase price of no less than 85% of the market price of the Common Stock on the date of issuance of such option, warrant, or other security; (iv) shares of Common Stock issued or deemed to have been issued in a Strategic Venture (as defined below); (v) shares of Common Stock issued or deemed to have been issued as consideration for an acquisition by the Company of a division, assets or business (or stock constituting any portion thereof) from another person; (vi) securities sold by the Company in a firm commitment underwritten public offering excluding a continuous offering pursuant to Rule 415 under the Securities Act; (vii) the issuance of Common Stock pursuant to an equity line of credit arrangement (an "EQUITY LINE"); provided that the Company does not exercise its option to make draw downs under the Equity Line until at least thirty (30) days following the effectiveness of the Registration Statement (as defined herein); or (viii) the issuance by any Subsidiary of its capital stock or securities convertible into its capital stock ("Subsidiary Securities"); provided that the Subsidiary Securities are not convertible into, or otherwise exchangeable for, Common Stock, the Company will not, without the prior written consent of Rose Xxxx, xxgotiate or contract with any party to obtain additional equity financing (including debt financing with an equity component) that involves (A) the issuance of Common Stock (whether upon conversion or exercise of a security convertible into or exercisable for Common Stock ("CONVERTIBLE SECURITIES") or otherwise) at a discount to the market price of the Common Stock on the date of issuance thereof or, in the case of Convertible Securities, the date of issuance of such Convertible Securities (in each case taking into account the value of any warrants or options to acquire Common Stock issued in connection therewith) or where the issuance price of such Common Stock is subject to reduction in the future or (B) the issuance of Convertible Securities that are convertible into an indeterminate number of shares of Common Stock or where options to employees, officers and directors of the Company pursuant to any stock option plan or employee incentive plan or agreement duly adopted or approved by a majority of the non-employee members of the Board of Directors of the Company or a majority of the members of a committee of non-employee directors established for such purpose, (b) the exercise of a Debenture or any other security issued by the Company in connection with the offer and sale of this Company's securities pursuant to this Agreement, or (c) the exercise of or conversion of any Capital Shares Equivalents issued and outstanding on the date hereof, provided that such securities have not been amended since the date hereof, or (d) the issuance price of Capital Shares or Capital Shares Equivalents in connection with acquisitions, strategic investments or strategic partnering arrangements, the primary purpose of which is not to raise capital, or (e) the granting of stock, stock options and/or warrants to an investment group in connection with the advancement of $1 million to the Company, which transaction is described in Item 13 of the Common Stock upon conversion or exercise of such Convertible Securities (includingCompany's Annual Report on Form 10-K for the fiscal year ended March 31, based upon any conversion2003. Additionally, exchange or reset formula) changes at any time after in additional to the date of issuance of such Convertible Securitieslimitations set forth herein, during the period (the "LOCK-UP PERIOD") beginning on the Closing Date and ending one hundred eighty (180) days from the date the Registration Statement (hereof until such time as defined in the Registration Rights Agreement) is declared effective (plus there are no longer any days after the Registration Statement is initially declared effective in which sales cannot be made thereunder). In addition, subject to the exceptions described in clauses (i) through (vii) of the first sentence of this Section 3.9Debentures, the Company will not conduct shall be prohibited from effecting or enter into an agreement to effect any equity financing (including debt with an equity component) ("FUTURE OFFERINGS") during the period beginning on the Closing Date and ending one hundred eighty-five (185) days after the end of the Lock-up Period (plus any days after the Registration Statement is initially declared effective in which sales cannot be made thereunder) unless it shall have first delivered to Rose Xxxx, xx least fifteen (15) business days prior to the closing of such Future Offering, written noticeSubsequent Financing
Appears in 1 contract
Samples: Securities Purchase Agreement (Singing Machine Co Inc)
