Common use of Subsequent Financing Clause in Contracts

Subsequent Financing. (a) Except as set forth on SCHEDULE 3.11(a) hereto and with respect to (i) the issuance of securities (other than for cash) in connection with a merger and/or acquisition, consolidation, sale or other disposition of assets, (ii) the exchange of capital stock for assets, (iii) an offering of securities at no less than the fair market price of such securities or (iv) the issuance of capital stock or options to purchase shares of its capital stock pursuant to any employee stock ownership plan currently in existence or pursuant to or employee stock option plan for the grant of options to purchase less than five percent (5%) of the outstanding shares of the Company's Common Stock, the Company covenants and agrees that the Company will not offer or sell Common Stock or any securities convertible or exchangeable into Common Stock based on variable rates of conversion (meaning based on a market price of the Common Stock as of the date of conversion or exchange) which the Company proposes or intends to consummate with any third parties (the "Subsequent Financing") on or before the forty-fifth (45th) day following the effectiveness of the registration statement (the "Registration Statement") to be filed pursuant to the Registration Rights Agreement without the prior written consent of the Purchasers. (b) The Company also covenants and agrees that during the one (1) year period after the effective date of the Registration Statement the Purchasers shall have a right of first refusal with respect to any Subsequent Financing. The Company will promptly notify the Purchasers in writing of the terms and conditions of the proposed Subsequent Financing. The Purchasers shall have the right for ten (10) trading days to consummate the Subsequent Financing, in whole but not in part, with the Company on the same terms and conditions as the proposed Subsequent Financing. If the Purchasers do not consummate the Subsequent Financing, the Company shall have forty-five (45) days thereafter to consummate the Subsequent Financing with such third parties, on the same or substantially the same terms, or on terms more favorable to the Company.

Subsequent Financing. Right of First Refusal Limitation on Registration. (a) Except as set forth on SCHEDULE 3.11(a) hereto and with respect to (i) the issuance of securities (other than for cash) in connection with a merger and/or acquisition, consolidation, sale or other disposition of assets, (ii) the exchange of capital stock for assets, (iii) an offering of securities at no less than the fair market price of such securities or (iv) the issuance of capital stock or options to purchase shares of its capital stock pursuant to any employee stock ownership plan currently in existence or pursuant to or employee stock option plan for the grant of options to purchase less than five percent (5%) of the outstanding shares of the Company's Common Stock, the Company covenants and agrees that the Company will not offer or sell Common Stock or any securities convertible or exchangeable into Common Stock based on variable rates of conversion (meaning based on a market price of the Common Stock as of the date of conversion or exchange) which the Company proposes or intends to consummate with any third parties (the "Subsequent Financing") on or before the forty-fifth (45th) day following the effectiveness of the registration statement (the "Registration Statement") to be filed pursuant to the Registration Rights Agreement without Without the prior written consent of the Purchasers. , prior to the 181st day following the Effective Date (b) The Company also covenants and agrees that during such date will be extended by the one (1) year period number of days after the effective date of Effectiveness Date (as defined in the Registration Rights Agreement) that an Underlying Shares Registration Statement has not been declared effective by the Purchasers shall have Commission and by the number of days after the Effective Date during which a right of first refusal with respect Purchaser is not permitted or unable to any Subsequent Financing. The Company will promptly notify utilize the Purchasers in writing of prospectus or otherwise to resell Underlying Shares under the terms and conditions of Underlying Shares Registration Statement) (the proposed Subsequent Financing. The Purchasers shall have the right for ten (10) trading days to consummate the Subsequent Financing, in whole but not in part, with the Company on the same terms and conditions as the proposed Subsequent Financing. If the Purchasers do not consummate the Subsequent Financing"Restricted Period"), the Company shall have forty-five (45) days thereafter not offer, sell, grant any option to consummate the Subsequent Financing with such third parties, on the same or substantially the same termspurchase, or on terms more favorable otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its securities (including the issuance of any debt or other instrument at any time over the life thereof convertible into or exchangeable for Common Stock) or any of its Affiliate's securities that may be exchangeable or convertible into Common Stock, or otherwise enter into any other transaction intended to be exempt or not subject to registration under the Securities Act (collectively, a "Subsequent Placement"), unless none of the securities issued or granted (or securities issuable upon conversion or exercise thereof) may be resold or registered for issuance or resale under the Securities Act until the termination of the Restricted Period. The restriction contained in the foregoing sentence shall not apply to (i) issuances of Common Stock pursuant to a Strategic Transaction (as defined below), (ii) issuances of shares of Common Stock as payment of the purchase price for an acquisition of assets or stock of an unaffiliated Person, (iii) issuances of shares of Common Stock at a price per share that is fixed (and not subject to any adjustments or repricings and not in any way accompanied by any other issuance of securities of the Company or an Affiliate thereof) at a price that is greater than the Initial Conversion Price (as defined in the Debentures), and (iv) the granting of options or warrants to employees, officers and directors of the Company, and the issuance of Common Stock upon exercise of such options or warrants granted under any stock option plan heretofore or hereinafter duly adopted by the Company ("Option Plan Issuances"). A "Strategic Transaction" shall mean a transaction or relationship in which the Company issues shares of Common Stock to a Person which is, itself or through its subsidiaries, an operating company in a business related to the Companybusiness of the Company and in which the Company receives material 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.

Subsequent Financing. From and after the execution of this Agreement until the earlier of (ax) Except the Closing and (y) the termination of this Agreement in accordance with its terms (such period, the “MFN Period”), if, during the MFN Period, the Target enters into, consummates or agrees to consummate any financing transaction for purposes of raising capital involving the issuance or sale, of (i) any equity securities of the Target, or (ii) any other equity securities or instruments of the Target that are convertible into or exercisable or exchangeable for any such equity securities (each, a “Subsequent Financing”) on terms that, taken as set forth on SCHEDULE 3.11(a) hereto a whole, are more favorable than the terms provided to the Purchaser under this Agreement and the other Transaction Documents with respect to the Target Securities purchased hereunder (iincluding pursuant to any side letter or similar agreement or arrangement entered into in connection with such Subsequent Financing or with any purchaser of Target Securities under the PIPE Financing, but excluding the 3,500,000 Class B Non-Voting Common shares of the Target issued to that certain Share Purchase Agreement of the Company dated as of the date hereof to certain investors in the Company). on about the date hereof), then the Purchaser shall be entitled to receive the benefit of such more favorable terms as provided in this Section 4.15. Notwithstanding the foregoing, for purposes of this Section 4.15, a Subsequent Financing shall not include (A) the issuance of equity securities pursuant to any employee or director equity, incentive, bonus, option, purchase or other compensation plan or arrangement approved by the board of directors of the Target (or committee thereof), (B) the issuance of equity securities upon the exercise, conversion or exchange of options, warrants, convertible securities or other than for cashrights outstanding as of the date hereof (including the Target Options and the Target SAFEs), in each case in accordance with their terms as in effect on the date hereof, (C) stock splits, stock dividends, recapitalizations, reclassifications or similar transactions with respect to the equity securities of any of the Target that are effected on a pro rata basis, (D) the issuance of equity securities as consideration (or partial consideration) in connection with a merger and/or any merger, acquisition, consolidationjoint venture, sale strategic transaction, commercial agreement, licensing arrangement or other disposition similar transaction, in each case, not primarily for the purpose of assetsraising equity capital, (ii) the exchange of capital stock for assets, (iii) an offering of securities at no less than the fair market price of such securities or (ivE) issuances in connection with the issuance of capital stock or options to purchase shares of its capital stock pursuant to any employee stock ownership plan currently in existence Business Combination or pursuant to or employee stock option plan for the grant of options to purchase less than five percent (5%) of the outstanding shares of the Company's Common Stock, the Company covenants and agrees that the Company will not offer or sell Common Stock or any securities convertible or exchangeable into Common Stock based on variable rates of conversion (meaning based on a market price of the Common Stock as of the date of conversion or exchange) which the Company proposes or intends to consummate with any third parties (the "Subsequent Financing") on or before the forty-fifth (45th) day following the effectiveness of the registration statement (the "Registration Statement") to be filed pursuant to the Registration Rights Agreement without the prior written consent of the PurchasersTransaction Documents. (b) The Company also covenants and agrees that during the one (1) year period after the effective date of the Registration Statement the Purchasers shall have a right of first refusal with respect to any Subsequent Financing. The Company will promptly notify the Purchasers in writing of the terms and conditions of the proposed Subsequent Financing. The Purchasers shall have the right for ten (10) trading days to consummate the Subsequent Financing, in whole but not in part, with the Company on the same terms and conditions as the proposed Subsequent Financing. If the Purchasers do not consummate the Subsequent Financing, the Company shall have forty-five (45) days thereafter to consummate the Subsequent Financing with such third parties, on the same or substantially the same terms, or on terms more favorable to the Company.