Common use of Equity Consideration Clause in Contracts

Equity Consideration. OREXIGEN shall issue to DUKE eight hundred eighty five thousand, two hundred and forty-nine (885,249) shares of OREXIGEN common stock as represent, on a FULLY DILUTED BASIS, an amount not less than [***] percent ([***]%) of OREXIGEN’s common stock outstanding at the time of execution of this AGREEMENT (hereinafter referred to as “DUKE STOCK”). OREXIGEN shall issue DUKE STOCK directly to DUKE in the name of “Duke University” and shall deliver the DUKE STOCK to DUKE within thirty (30) days of the EFFECTIVE DATE. It is understood and agreed that [***] shall promptly reimburse [***] for any out-of-pocket costs (not to exceed [***] dollars ($[***]) incurred by [***] in effecting such transfer of DUKE STOCK to DUKE. It is further understood and agreed that, notwithstanding anything to the contrary in this AGREEMENT, such DUKE STOCK is non-refundable. It is understood and acknowledged that DUKE shall be treated as a founder of OREXIGEN and that the DUKE STOCK will be subject to the terms and conditions provided for in OREXIGEN’s Certificate of Incorporation and Bylaws, which are attached as APPENDIX B, and also subject to the Right of First Refusal and Co-Sale Agreement by and among OREXIGEN, DUKE, and other THIRD PARTY signatories thereto, the form of which is attached as APPENDIX F (the “RIGHT OF FIRST REFUSAL AGREEMENT”), and will be marketable by DUKE under the same conditions and subject to the same limitations as are the restricted shares of common stock of OREXIGEN held by any founder or equivalent. Subject to the prior sentence, as well as restrictions on transfer set forth in the Right of First Refusal Agreement and the Securities Act of 1933, as amended, OREXIGEN will permit and promptly effect any request from DUKE to transfer any of the DUKE STOCK to any persons as DUKE will direct, and OREXIGEN, DUKE and such persons will execute such documents and instruments as are reasonably necessary to effect such transfer. In connection with the issuance of the DUKE STOCK, DUKE shall execute a Common Stock Purchase Agreement for the DUKE STOCK, in the form attached as APPENDIX E and the Right of First Refusal Agreement in the form attached as APPENDIX F. In the event that the Right of First Refusal Agreement is amended without the consent of Duke, Duke shall retain all rights set forth in Section 1 thereof regarding rights of first refusal as if such agreement had not been so amended. In addition, DUKE shall have the rights of a “Majority Holder” as set forth in Sections 2.1 and 2.2 of the Investors’ Rights Agreement by and among OREXIGEN and other THIRD PARTY signatories thereto, the form of which is attached as APPENDIX G (the “INVESTORS’ RIGHTS AGREEMENT”), so long as DUKE meets the definition of a “Major Holder” under the INVESTORS’ RIGHTS AGREEMENT and there has been no termination of the covenants of OREXIGEN pursuant to Section 2.3 thereunder. DUKE shall not be made a party to the INVESTORS’ RIGHTS AGREEMENT, but shall be conferred the benefits of a Majority Holder under Sections 2.1 and 2.2 of the INVESTORS’ RIGHTS AGREEMENT by the independent provisions of this Section 3.01(a).

Equity Consideration. OREXIGEN LICENSEE shall issue provide to DUKE eight hundred eighty five thousand, two hundred and forty-nine (885,249) shares UNIVERSITIES a founder’s position of OREXIGEN common stock as represent, on a FULLY DILUTED BASIS, an amount not less than LICENSEE’s equity equivalent to [***] percent ([***]%) of OREXIGEN’s the original LICENSEE equity issued. For example, if the initial capitalization of LICENSEE consists of ten million (10,000,000) common stock outstanding at shares, such equity shall be equal to [***] ([***]) common shares fully diluted, with each of Emory and UGARF holding [***] ([***]) common shares (or [***]%) and the time inventor/founders of execution of this AGREEMENT LICENSEE holding [***] (hereinafter referred to as “DUKE STOCK”[***])common shares (or [***]%). OREXIGEN LICENSEE will use commercially reasonable efforts to prepare an operating agreement and/or shareowners agreement within ninety (90) days after the Effective Date. The founder shares to be owned by the UNIVERSITIES and the investor/founders will be of the same class. It is the intent that Emory and UGARF will have the right to convert their ownership interests in LICENSEE into an economically equivalent founder’s position in any joint venture entered into by LICENSEE to develop Licensed Products or any Designated Affiliate of LICENSEE whose business includes developing the Licensed Products with the proviso that if LICENSEE reserves any such rights to Licensed Products unto itself in connection with any such joint venture, Emory and UGARF will maintain a smaller founder’s equity position in LICENSEE based on the relative value of such reserved rights by LICENSEE, provided that this right shall issue DUKE STOCK directly be exercisable only once, and only as to DUKE in the name of “Duke University” one such venture, and shall deliver the DUKE STOCK to DUKE only then if it is exercised within thirty (30) days of the EFFECTIVE DATE. It is understood and agreed that [***] shall promptly reimburse [***] for any out-of-pocket costs (not notice from LICENSEE to exceed [***] dollars ($[***]) incurred by [***] in effecting such transfer of DUKE STOCK to DUKE. It is further understood and agreed that, notwithstanding anything to the contrary in this AGREEMENT, such DUKE STOCK is non-refundable. It is understood and acknowledged that DUKE shall be treated as a founder of OREXIGEN and that the DUKE STOCK will be subject to the terms and conditions provided for in OREXIGEN’s Certificate of Incorporation and Bylaws, which are attached as APPENDIX B, and also subject to the Right of First Refusal and Co-Sale Agreement by and among OREXIGEN, DUKE, and other THIRD PARTY signatories thereto, the form of which is attached as APPENDIX F (the “RIGHT OF FIRST REFUSAL AGREEMENT”), and will be marketable by DUKE under the same conditions and subject to the same limitations as are the restricted shares of common stock of OREXIGEN held by any founder or equivalent. Subject to the prior sentence, as well as restrictions on transfer set forth in the Right of First Refusal Agreement and the Securities Act of 1933, as amended, OREXIGEN will permit and promptly effect any request from DUKE to transfer any UNIVERSITIES of the DUKE STOCK to any persons as DUKE will direct, and OREXIGEN, DUKE and such persons will execute such documents and instruments as are reasonably necessary opportunity. UNIVERSITIES’ rights to effect such transfer. In connection with the issuance of the DUKE STOCKa conversion may be conditioned, DUKE shall execute a Common Stock Purchase Agreement at LICENSEE’s option, upon UNIVERSITIES’ entering into reasonable buy-sell agreements providing for the DUKE STOCK, in the form attached as APPENDIX E and the Right of First Refusal Agreement in the form attached as APPENDIX F. In the event that the Right of First Refusal Agreement is amended without the consent of Duke, Duke shall retain all rights set forth in Section 1 thereof regarding rights of first refusal as if in favor of LICENSEE in the event UNIVERSITIES desire to transfer their interests in such agreement had not been so amended. In addition, DUKE shall have joint venture and for “drag along” rights covering UNIVERSITIES’ interest in the rights of a “Majority Holder” as set forth event LICENSEE desires to transfer its interest in Sections 2.1 and 2.2 of the Investors’ Rights Agreement by and among OREXIGEN and other THIRD PARTY signatories thereto, the form of which is attached as APPENDIX G (the “INVESTORS’ RIGHTS AGREEMENT”), so long as DUKE meets the definition of a “Major Holder” under the INVESTORS’ RIGHTS AGREEMENT and there has been no termination of the covenants of OREXIGEN pursuant to Section 2.3 thereunder. DUKE shall not be made a party to the INVESTORS’ RIGHTS AGREEMENT, but shall be conferred the benefits of a Majority Holder under Sections 2.1 and 2.2 of the INVESTORS’ RIGHTS AGREEMENT by the independent provisions of this Section 3.01(a)such joint venture.

Equity Consideration. OREXIGEN shall issue Pursuant to DUKE eight hundred eighty five thousandthe terms and subject to the conditions set forth herein, two hundred and forty-nine (885,249) shares of OREXIGEN common stock as represent, on a FULLY DILUTED BASIS, an amount not less than [***] percent ([***]%) of OREXIGEN’s common stock outstanding at the time Closing, (i) Buyer Parent shall contribute to Buyer OP and Buyer OP shall deliver to the Seller Parties and/or one or more Affiliates of execution of this AGREEMENT the Seller Parties designated by the Seller Parties to the Buyer Parties in writing prior to the Closing (hereinafter referred to as each, a “DUKE STOCKSeller Designee”). OREXIGEN , and the Seller Parties (and/or Seller Designees, if applicable) shall issue DUKE STOCK directly acquire from Buyer OP, a number of newly-issued Buyer Parent Shares equal to DUKE the Buyer Parent Share Amount (the “Issued Buyer Parent Shares”), validly issued, fully paid and non-assessable, and free and clear of all Liens (other than restrictions arising under applicable securities Laws, the Governing Documents of Buyer Parent and the Stockholders Agreement), which will be registered in the name of “Duke University” the applicable Seller Party (and/or Seller Designee) by book entry in an account or accounts with Buyer Parent’s transfer agent and (ii) subject to Section 1.4, Buyer OP shall deliver the DUKE STOCK to DUKE within thirty (30) days of the EFFECTIVE DATE. It is understood and agreed that [***] shall promptly reimburse [***] for any out-of-pocket costs (not to exceed [***] dollars ($[***]) incurred by [***] in effecting such transfer of DUKE STOCK to DUKE. It is further understood and agreed that, notwithstanding anything issue to the contrary in this AGREEMENTSeller Parties (and/or Seller Designees, such DUKE STOCK is nonif applicable), and the Seller Parties (and/or Seller Designees, if applicable) shall acquire from Buyer OP, a number of newly-refundable. It is understood and acknowledged that DUKE shall be treated as a founder of OREXIGEN and that the DUKE STOCK will be subject issued Buyer OP Units equal to the terms and conditions provided for in OREXIGEN’s Certificate difference of Incorporation and Bylaws, which are attached as APPENDIX B, and also subject to (x) the Right of First Refusal and Co-Sale Agreement by and among OREXIGEN, DUKE, and other THIRD PARTY signatories thereto, Total Buyer Securities Amount minus (y) the form of which is attached as APPENDIX F Buyer Parent Share Amount (the “RIGHT OF FIRST REFUSAL AGREEMENTIssued Buyer OP Units” and, together with the Issued Buyer Parent Shares, the “Equity Consideration”), validly issued and will free and clear of all Liens (other than restrictions arising under applicable securities Laws, the Governing Documents of Buyer OP and the Stockholders Agreement); provided, that the Equity Consideration and Total Buyer Securities Amount shall be marketable by DUKE under the same conditions and subject proportionately adjusted to reflect any splits, combinations, stock dividends, recapitalizations, reorganizations or reclassifications with respect to the same limitations as Buyer Parent Shares or Buyer OP Units or any transaction in which the Buyer Parent Shares or Buyer OP Units are converted into other securities or cash, in each case, occurring between the restricted shares date of common stock of OREXIGEN held by any founder or equivalent. Subject to the prior sentence, as well as restrictions on transfer set forth in the Right of First Refusal this Agreement and the Securities Act of 1933, as amended, OREXIGEN will permit and promptly effect any request from DUKE to transfer any of the DUKE STOCK to any persons as DUKE will direct, and OREXIGEN, DUKE and such persons will execute such documents and instruments as are reasonably necessary to effect such transfer. In connection with the issuance of the DUKE STOCK, DUKE shall execute a Common Stock Purchase Agreement for the DUKE STOCK, in the form attached as APPENDIX E and the Right of First Refusal Agreement in the form attached as APPENDIX F. In the event that the Right of First Refusal Agreement is amended without the consent of Duke, Duke shall retain all rights set forth in Section 1 thereof regarding rights of first refusal as if such agreement had not been so amended. In addition, DUKE shall have the rights of a “Majority Holder” as set forth in Sections 2.1 and 2.2 of the Investors’ Rights Agreement by and among OREXIGEN and other THIRD PARTY signatories thereto, the form of which is attached as APPENDIX G (the “INVESTORS’ RIGHTS AGREEMENT”), so long as DUKE meets the definition of a “Major Holder” under the INVESTORS’ RIGHTS AGREEMENT and there has been no termination of the covenants of OREXIGEN pursuant to Section 2.3 thereunder. DUKE shall not be made a party to the INVESTORS’ RIGHTS AGREEMENT, but shall be conferred the benefits of a Majority Holder under Sections 2.1 and 2.2 of the INVESTORS’ RIGHTS AGREEMENT by the independent provisions of this Section 3.01(a)Closing Date.