Future Financings. 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 (y) 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. Notwithstanding anything to the contrary herein, this Section 4.13 shall not apply to the following (a) the granting or issuance of shares of Common Stock or 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 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 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 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. The term "MFN Transaction" shall mean a transaction in which 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, 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 Section 7(a) of the Certificate of Designation) to the extent the holders of the Preferred Stock would not be permitted, pursuant to Section 6(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 shall not make any issuance whatsoever of Common Stock or Common Stock Equivalents which would cause any adjustment of the Conversion Price to the extent the holders of Preferred Stock would not be permitted, pursuant to Section 6(d) 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 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.
Appears in 1 contract
Samples: Securities Purchase Agreement (Interactive Systems Worldwide Inc /De)
Future Financings. 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 Except for the number of Trading Days during such period in which (yi) 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 issuance of the Underlying Shares. Notwithstanding anything ; (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 contrary herein, this Section 4.13 shall not apply to the following Company which is either (a) approved by the granting 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 options (where the issuance price of the Common Stock upon conversion or exercise thereof) to or by employeesof such Convertible Securities (including, 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 based upon 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 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 either (A) at a conversion, exercise exchange 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 reset formula) changes at any time after the initial date of issuance of such debt or equity securitiesConvertible Securities, or during the period (Bthe "LOCK-UP PERIOD") with a conversion, exercise or exchange price that 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 subject to being reset at some future date declared effective (plus any days 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. The term "MFN Transaction" shall mean a transaction Registration Statement is initially declared effective in which 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 offeringsales cannot be made thereunder). In addition, unless Shareholder Approval has been obtained and deemed effective subject to the exceptions described in accordance with clauses (i) through (vii) of the first sentence of this Section 4.5(c)3.9, the Company shall will not make conduct any issuance whatsoever of Capital Shares or Capital Shares Equivalents which would cause any adjustment 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 Conversion Price Lock-up Period (other than pursuant 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 Section 7(aRose Xxxx, xx least fifteen (15) of the Certificate of Designation) business days prior to the extent the holders closing of the Preferred Stock would not be permittedsuch Future Offering, pursuant to Section 6(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 shall not make any issuance whatsoever of Common Stock or Common Stock Equivalents which would cause any adjustment of the Conversion Price to the extent the holders of Preferred Stock would not be permitted, pursuant to Section 6(d) 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 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.written notice
Appears in 1 contract
Future Financings. From the Closing Date 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 90 120 day period set forth in this Section 4.13 shall be extended for the number of Trading Days during such period in which (y) 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. Notwithstanding anything to the contrary herein, this Section 4.13 shall not apply to the following (a) the granting or issuance of shares of Common Stock or options (or exercise thereof) to or by employees, officers, directors, officers 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) 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, or (b) the exercise of the Preferred Stock 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 Documentsthis Agreement, or (c) the exercise of or conversion of any Capital Shares Equivalents issued and outstanding on the Closing Datedate hereof, 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 exercisedhereof, or (d) the issuance 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 (e) the granting of any such Capital Share Equivalents ((a)-(d)stock, eachstock options and/or warrants to an investment group in connection with the advancement of $1 million to the Company, an "Exempt Issuance")which transaction is described in Item 13 of the Company's Annual Report on Form 10-K for the fiscal year ended March 31, 2003. In addition Additionally, in additional to the limitations set forth herein, from the Closing Date date hereof until such time as the Purchasers there are no longer hold any of the SecuritiesDebentures, the Company shall be prohibited from effecting or entering enter 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 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 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. The term "MFN Transaction" shall mean a transaction in which 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, 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 Section 7(a) of the Certificate of Designation) to the extent the holders of the Preferred Stock would not be permitted, pursuant to Section 6(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 shall not make any issuance whatsoever of Common Stock or Common Stock Equivalents which would cause any adjustment of the Conversion Price to the extent the holders of Preferred Stock would not be permitted, pursuant to Section 6(d) 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 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.Financing
Appears in 1 contract
Samples: Securities Purchase Agreement (Singing Machine Co Inc)
Future Financings. 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 (y) 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. Notwithstanding anything to the contrary herein, this Section 4.13 shall not apply to the following (a) the granting or issuance of shares of Common Stock or 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 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 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")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 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 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. The term "MFN Transaction" shall mean a transaction in which 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 receive additional shares based upon future transactions of the Company on terms more favorable than those granted to such investor in their original such offering. In addition, 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 Set Price (other than pursuant to Section 7(a4(c)(ii) of the Certificate of DesignationDebentures) to the extent the holders of the Preferred Stock Debentures would not be permitted, pursuant to Section 6(d4(a)(ii)(B) 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 shall not make any issuance whatsoever of Common Stock or Common Stock Equivalents which would cause any adjustment of the Conversion Price to the extent the holders of Preferred Stock would not be permitted, pursuant to Section 6(d) of the Certificate of DesignationDebenture, to convert their respective outstanding Debentures and exercise their respective Warrants in full, ignoring for such purposes the any conversion or exercise limitations therein. 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.
Appears in 1 contract
Samples: Securities Purchase Agreement (Interactive Systems Worldwide Inc /De)
Future Financings. From the Closing Date 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 EquivalentsEquivalents (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 90 30 day period set forth in this Section 4.13 4.7 shall be extended for the number of Trading Days during such period in which (yi) trading in the Common Stock is suspended by any Principal Market, or (zii) 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 each Purchaser for the resale of the Underlying Shares. Notwithstanding anything to the contrary herein, this Section 4.13 4.7 shall not apply to the following (a) the granting or issuance of shares of Common Stock or options (or exercise thereof) to or by employees, officers, directors, officers 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) 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, or (b) the exercise of the any Preferred Stock or any other security issued by the Company in connection with the offer and sale of this Company's ’s securities pursuant to the Transaction Documentsthis Agreement, or (c) the exercise of or conversion of any Capital Shares Equivalents convertible securities, options or warrants issued and outstanding on the Closing Datedate hereof, 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 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 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 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. The term "MFN Transaction" shall mean a transaction in which 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 offeringhereof. In addition, unless Shareholder Stockholder Approval has been obtained and deemed effective in accordance with Section 4.5(c4.5(d), the Company shall not make any issuance whatsoever of Capital Shares or Capital Shares Equivalents which would cause any adjustment of the Conversion Set Price (other than pursuant to Section 7(a5(c)(ii) of the Certificate of DesignationArticles Supplementarys) to the extent the holders of the Preferred Stock would not be permitted, pursuant to Section 6(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 shall not make any issuance whatsoever of Common Stock or Common Stock Equivalents which would cause any adjustment of the Conversion Price to the extent the holders of Preferred Stock would not be permitted, pursuant to Section 6(d5(a)(iii) of the Certificate of DesignationArticles Supplementarys, to convert their respective outstanding Debentures and exercise their respective Warrants Preferred Stock in full, ignoring for such purposes the conversion or exercise limitations therein. 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.
Appears in 1 contract
Samples: Securities Purchase Agreement (U S Restaurant Properties Inc)
Future Financings. 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 (y) 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. Notwithstanding anything to the contrary herein, this Section 4.13 shall not apply to the following (a) the granting or issuance of shares of Common Stock or 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 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")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 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 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. The term "MFN Transaction" shall mean a transaction in which 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, 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 Section 7(a) of the Certificate of Designation) to the extent the holders of the Preferred Stock would not be permitted, pursuant to Section 6(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 shall not make any issuance whatsoever of Common Stock or Common Stock Equivalents which would cause any adjustment of the Conversion Price to the extent the holders of Preferred Stock would not be permitted, pursuant to Section 6(d) 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 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.hold
Appears in 1 contract
Samples: Securities Purchase Agreement (Interactive Systems Worldwide Inc /De)
Future Financings. From the Closing Date date hereof until 90 days after the Effective DateDate of the initial Registration Statement relating to the Securities issued at the First Closing and, other than as contemplated by this Agreementif 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 4.13 4.7 shall be extended for the number of Trading Days during such period in which (y) 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. Notwithstanding anything to the contrary herein, this Section 4.13 4.7 shall not apply to the following (a) the granting or issuance of shares of Common Stock or options (or exercise thereof) to or by employees, officers, directors, officers 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) 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, or (b) the exercise of the Preferred Stock 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 Documentsthis Agreement, or (c) the exercise of or conversion of any Capital Shares Equivalents convertible securities, options or warrants issued and outstanding on the Closing Datedate hereof, 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 exercisedhereof, or (d) the issuance of Capital Shares or Capital Shares Equivalents any securities 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 e) a one-time issuance to Xxxxxx Xxxxx on or prior to the limitations set forth herein, from fifth Trading Day after the Closing Date until such time as date hereof of convertible debentures with a principal amount equal to $500,000 and a conversion price equal to the Purchasers no longer hold any greater of the SecuritiesSet Price and the average of the 5 VWAPs immediately prior to such issuance, otherwise in 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 form of the Company issues or sells (i) any debt or equity securities that are convertible into, exchangeable or exercisable forDebentures, or include (f) prior to the right Effective Date of the initial Registration Statement relating to receive additional shares ofthe Securities issued at the First Closing, Common Stock either (A) at a conversionone-time issuance of up to $2,000,000 of Capital Shares or Capital Shares Equivalents, exercise or exchange rate or other provided such securities have an effective price that is based upon and/or varies with the trading prices of or quotations for the shares per share of Common Stock of at any time after the initial issuance of such debt or equity securitiesleast $1.75, 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 adjustment for the Common Stock. The term "MFN Transaction" shall mean a transaction in which 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 reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Company on terms more favorable Common Stock that occur after the date of this Agreement and provided the effective price of such security is not adjustable thereafter, other than those granted to such investor in their original offeringfor stock splits, stock dividends, stock combinations and the like. In addition, 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 Set Price (other than pursuant to Section 7(a4(c)(ii) of the Certificate of DesignationDebentures) to the extent the holders of the Preferred Stock Debentures would not be permitted, pursuant to Section 6(d4(a)(ii)(B) 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 shall not make any issuance whatsoever of Common Stock or Common Stock Equivalents which would cause any adjustment of the Conversion Price to the extent the holders of Preferred Stock would not be permitted, pursuant to Section 6(d) of the Certificate of DesignationDebenture, to convert their respective outstanding Debentures and exercise their respective the Warrants in full, ignoring for such purposes the conversion or exercise limitations therein. 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.
Appears in 1 contract
Future Financings. From the Closing Date date hereof until 90 days after the Effective Date, other than as contemplated by this AgreementDate of the initial Registration Statement relating to the Securities, neither the Company nor any Subsidiary shall issue or sell any Capital Shares or Capital Shares Equivalents; PROVIDED, HOWEVER, such 90 day period shall be 30 days as it solely relates to up to 34 million shares of Common Stock issued in a firm commitment underwritten public offering by Xxxx Capital Partners, the proceeds of which shall first be applied to the redemption of all of the securities held at such time by The Sage Group, plc (or any Affiliates thereof) (the "XXXX OFFERING"). Notwithstanding anything herein to the contrary, the 90 or 30 day period set forth in this Section 4.13 4.7, as applicable, shall be extended for the number of Trading Days during such period in which (y) 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. Notwithstanding anything to the contrary herein, this Section 4.13 4.7 shall not apply to the following (a) the granting or issuance of shares of Common Stock or options (or exercise thereof) to or by employees, officers, directors, officers 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) 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, or (b) the exercise of the Preferred Stock 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 Documentsthis Agreement, or (c) the exercise of or conversion of any Capital Shares Equivalents convertible securities, options or warrants issued and outstanding on the Closing Datedate hereof, 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, hereof or (d) the issuance of Capital Shares or Capital Shares Equivalents any securities 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 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 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. The term "MFN Transaction" shall mean a transaction in which 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, 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 Set Price (other than pursuant to Section 7(a4(c)(ii) of the Certificate of DesignationDebentures) to the extent the holders of the Preferred Stock Debentures would not be permitted, pursuant to Section 6(d4(a)(ii)(B) 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 shall not make any issuance whatsoever of Common Stock or Common Stock Equivalents which would cause any adjustment of the Conversion Price to the extent the holders of Preferred Stock would not be permitted, pursuant to Section 6(d) of the Certificate of DesignationDebenture, to convert their respective outstanding Debentures and exercise their respective the Warrants in full, ignoring for such purposes the conversion or exercise limitations therein. 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.
Appears in 1 contract
Future Financings. 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 DateDate 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 4.13 4.7 shall be extended for the number of Trading Days during such period in which (y) 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. Notwithstanding anything to the contrary hereinforegoing, this Section 4.13 4.7 shall not apply to in respect of the following issuance of (a) the granting or issuance of shares of Common Stock or 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 exceedadvisors, in the aggregate, 200,000 Capital Shares officers or Capital Shares Equivalents convertible into or exchangeable for 200,000 Capital Shares per any 12 month period) directors of the Company pursuant to any stock or 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) securities upon the exercise of, or in connection with the payment of interest on or redemption of, the Preferred Stock Debentures or any Debentures of this series or of any other series or security issued by the Company in connection with the offer and sale of this Company's securities pursuant to the Transaction Documentsthis Agreement, or (c) securities upon the exercise of or conversion of any Capital Shares Equivalents convertible securities, options or warrants issued and outstanding on the Closing Datedate of this Agreement, provided that such securities have not been amended since the Closing Date in order to reduce the effective exercise pricedate of this Agreement, increase the number of shares issuable or accelerate the date on which such Capital Share Equivalents may be exercised, or (d) the issuance of Capital Shares or Capital Shares Equivalents securities in connection with acquisitions, acquisitions or strategic investments (including, without limitation, any licensing or strategic partnering distribution arrangements), the primary purpose of which is not to raise capital, (e) securities to financial institutions or subsequent exercise of any lessors in connection with commercial credit arrangements, equipment financings or similar transactions, where the principal consideration for such Capital Share Equivalents ((a)-(d), each, an "Exempt Issuance"). In addition to transaction is not 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 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 debt or equity securities, or (Bf) with a conversionup to, exercise or exchange price that is subject to being reset at some future date after in 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. The term "MFN Transaction" shall mean a transaction in which 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 additionaggregate, unless Shareholder Approval has been obtained and deemed effective in accordance with Section 4.5(c), the Company shall not make any issuance whatsoever $2,000,000 of Capital Shares or (not Capital Shares Equivalents which would cause any adjustment Equivalents), in a one-time transaction with pre-existing shareholders, for a per share purchase price of not less than 90% of the Conversion Price average of the VWAPs during the 5 Trading Days prior to any such transaction (other "Market Price") along with up to 25% warrant coverage with an exercise price not less than 112% of the then Market Price, which transaction may have registration rights. For purposes of clarification, an issuance pursuant to Section 7(aclause (f) of the Certificate of Designation) above shall be subject to the extent anti-dilution provisions in the holders of the Preferred Stock would not be permitted, pursuant to Section 6(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 shall not make any issuance whatsoever of Common Stock or Common Stock Equivalents which would cause any adjustment of the Conversion Price to the extent the holders of Preferred Stock would not be permitted, pursuant to Section 6(d) 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 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 damagesWarrants.
Appears in 1 contract
