Common use of Equity Issuances Clause in Contracts

Equity Issuances. Except for any Exempt Issuance (as hereinafter defined), in the event the Company issues or sells any securities including options or convertible securities (or amends any outstanding securities of the Company), at an effective price of, or with an exercise or conversion price of less than the Exercise Price, then upon such issuance or sale, the Exercise Price shall be reduced to the sale price or the exercise or conversion price of the securities issued or sold. “Exempt Issuance” shall mean any sale or issuance by the Company of its Common Stock or securities convertible into, exercisable for or exchangeable for Common Stock in connection with (i) full or partial consideration in connection with a strategic merger, acquisition, consolidation or purchase of the securities or assets of a corporation or other entity (or any division or business unit thereof), (ii) the Company’s issuance of securities in connection with strategic supply, sale or license agreements and other partnering arrangements so long as such issuances are not for the purpose of raising capital, (iii) the Company’s issuance of Common Stock, restricted stock units or the issuances or grants of options to purchase Common Stock to employees, officers or directors, under an equity incentive plan adopted by a majority of the non employee members of the Board of Directors of the Company; (iv) securities issued upon the exercise or exchange of or conversion of any convertible securities issued and outstanding on the date of the issuance of Series E to securities holders of the Company in exchange for other securities existing as of the date of this Warrant, (v) the conversion of any Series E, Series C-1 Convertible Preferred Stock and Series C-2 Convertible Preferred Stock or (vi) any equity line of credit or similar agreement, if entered into with the consent of Dxxx Xxxxxxxxxxxx. In case any shares of Common Stock, convertible securities or options are issued in connection with the issue or sale of other securities of the Company, together comprising one integrated transaction, each share of Common Stock underlying any such convertible securities or options shall be deemed to be one additional share of Common Stock for the purposes of determining the effective price of the non-Exempt Issuance.

Equity Issuances. Except for any Exempt Issuance (as hereinafter defined), in the event the Company issues or sells any securities including options or convertible securities (or amends any outstanding securities of the Company), at an effective price ofNo Loan Party will, or with an exercise or conversion price of less than the Exercise Pricewill permit any Subsidiary to, then upon such issuance or sale, the Exercise Price shall be reduced to the sale price or the exercise or conversion price of the securities issued or sold. “Exempt Issuance” shall mean any sale or issuance by the Company of its Common Stock or securities convertible into, exercisable for or exchangeable for Common Stock in connection with (i) issue any preferred stock or other Capital Stock (except for preferred stock (x) all dividends in respect of which are to be paid (and all other payments in respect of which are to be made) in additional shares of such preferred stock, in lieu of cash until all Obligations are paid in full or partial consideration in connection with a strategic mergerand all Commitments terminated, acquisition, consolidation or purchase (y) that is not subject to redemption other than redemption at the option of the securities or assets Loan Party issuing such preferred stock and (z) all payments in respect of a corporation or other entity (or any division or business unit thereofwhich are expressly subordinated to the Obligations), (ii) except as permitted above, be or become liable in respect of any obligation (contingent or otherwise) to purchase, redeem, retire, acquire or make any other payment in respect of (x) any shares of Capital Stock of any Loan Party or (y) any option, warrant or other right to acquire any such shares of Capital Stock of any Loan Party, or (iii) except as permitted above, issue any additional shares of its Capital Stock; provided that notwithstanding anything to the Company’s contrary contained herein, nothing in this SECTION 6.06 shall prohibit (a) the issuance of securities in connection with strategic supply, sale or license agreements and Capital Stock by the Parent (other partnering arrangements than preferred stock not permitted to be issued under clause (i) above) so long as such issuances the Net Proceeds thereof (if any) are not deposited into the Concentration Account for the purpose of raising capital, (iii) the Company’s issuance of Common Stock, restricted stock units or the issuances or grants of options application to purchase Common Stock to employees, officers or directors, under an equity incentive plan adopted by a majority and reduction of the non employee members of the Board of Directors of the CompanyObligations in accordance with SECTION 2.16 hereof; (ivb) securities issued upon the exercise or exchange of or conversion of any convertible securities issued and outstanding on the date of the issuance of Series E options or stock awards, including, without limitation, issuances of options or stock awards to securities holders employees of the Company in exchange Merger Subsidiary pursuant to the Merger Agreement and expressly set forth therein so long as the Net Proceeds thereof (if any) are deposited into the Concentration Account for other securities existing as application to and reduction of the date of this WarrantObligations in accordance with SECTION 2.16 hereof, or (vc) the conversion issuance of any Series E, Series C-1 Convertible Preferred Capital Stock and Series C-2 Convertible Preferred Stock by Parent (other than preferred stock not permitted to be issued under clause (i) above) with respect to the Warrants or (vi) any equity line of credit or similar agreement, if entered into with the consent of Dxxx Xxxxxxxxxxxx. In case any shares of Common Stock, convertible securities or options are issued in connection with the issue issuance of options, warrants or sale stock awards, or in connection with the exercise of other securities options, warrants or stock awards, so long as the Net Proceeds thereof (if any) are deposited into the Concentration Account for application to and reduction of the Company, together comprising one integrated transaction, each share Obligations in accordance with SECTION 2.16 hereof.” r. By amending Section 6.07(b) (Restricted Payments; Certain Payments of Common Stock underlying any such convertible securities or options shall be deemed to be one additional share of Common Stock for Indebtedness) thereto as follows: i. By deleting clause (ii) thereof in its entirety and substituting the purposes of determining the effective price of the non-Exempt Issuance.following clause (ii) in its stead:

Equity Issuances. Except (i) If after the Signing the Company authorizes the issuance or sale of any Equity Securities, the Company shall offer to sell to each holder of Underlying Class A Common Stock a portion of such stock or securities equal to the quotient determined by dividing (1) the number of shares of Underlying Class A Common Stock held by such holder by (2) the total number of shares of Common Stock outstanding on a fully diluted basis. Each holder of Underlying Class A Common Stock shall be entitled to purchase such stock or securities at the most favorable price and on the most favorable terms as such stock or securities are to be offered to any other Persons. The purchase price for any Exempt Issuance (as hereinafter defined)all stock and securities offered to the holders of the Underlying Common Stock shall be payable in cash; provided that, if other Persons are to pay for such Equity Securities in whole or in part with consideration other than cash, then the Board, in its sole discretion, shall make a determination of the event fair market value of such consideration, and each holder of Underlying Class A Common Stock will be entitled to purchase the Equity Securities for cash equal to the fair market value of the aggregate cash and non-cash consideration each of them would otherwise pay hereunder. Notwithstanding the foregoing, none of the holders of Underlying Class A Common Stock will be permitted to exercise its rights under this Section 3G unless it agrees to purchase its ---------- proportionate amount of each class or series of securities offered as a package or unit in the issuance of the Equity Securities. (ii) In order to exercise its purchase rights hereunder, a holder of Underlying Class A Common Stock must, within 30 days after receipt of written notice from the Company issues describing in reasonable detail the stock or sells securities being offered, the purchase price thereof, the payment terms and such holder's percentage allotment, deliver a written notice to the Company describing its election hereunder (including the amount of Equity Securities it so elects to purchase); provided that funding the purchase of Equity Securities may be subject to the expiration or termination of any securities including options or convertible securities (or amends any outstanding securities applicable waiting period under the HSR Act. If all of the Company), at an effective price of, or with an exercise or conversion price stock and securities offered to the holders of less than the Exercise Price, then upon Underlying Class A Common Stock is not fully subscribed by such issuance or saleholders, the Exercise Price remaining stock and securities shall be reduced to the sale price or the exercise or conversion price of the securities issued or sold. “Exempt Issuance” shall mean any sale or issuance reoffered by the Company to the holders purchasing their full allotment upon the terms set forth in this Section 3G, except ---------- that such holders must exercise their purchase rights within five days after receipt of its Common Stock or securities convertible into, exercisable for or exchangeable for Common Stock in connection with (i) full or partial consideration in connection with a strategic merger, acquisition, consolidation or purchase of the securities or assets of a corporation or other entity (or any division or business unit thereof), (ii) the Company’s issuance of securities in connection with strategic supply, sale or license agreements and other partnering arrangements so long as such issuances are not for the purpose of raising capital, reoffer. (iii) Upon the Company’s expiration of the offering periods described above, the Company shall be entitled to sell such stock or securities which the holders of Underlying Class A Common Stock have not elected to purchase during the 60 days following such expiration on terms and conditions no more favorable to the purchasers thereof than those offered to such holders. Any stock or securities offered or sold by the Company after such 60-day period must be reoffered to the holders of Underlying Class A Common Stock pursuant to the terms of this Section 3G. ---------- (iv) The Company shall promptly deliver to holders of Underlying Class A Common Stock certificates evidencing the Equity Securities purchased by each such party hereunder, upon receipt of payment therefor, and upon execution of such documents and instruments as shall govern the issuance of Common Stocksuch Equity Securities (which documents and instruments shall be substantially the same as those governing the issuance of the Equity Securities to other Persons). (v) Notwithstanding anything to the contrary herein, restricted stock units or the issuances or grants rights of options to purchase the holders of Underlying Class A Common Stock to employees, officers or directors, under an equity incentive plan adopted this Section ------- 3G may be waived on behalf of all holders of Underlying Class A Common -- Stock by the vote of at least (a) a majority of the non employee members outstanding Purchaser Shares held by Corporate Investors, and, (b) a majority of the Board of Directors of outstanding Purchaser Shares held by Financial Investors; provided that only Persons not participating in the Company; (iv) securities issued upon the exercise or exchange of or conversion of any convertible securities issued relevant financing may be counted towards, and outstanding on the date of the issuance of Series E to securities holders of the Company in exchange for other securities existing as of the date of this Warrantparticipate in, (v) the conversion of any Series E, Series C-1 Convertible Preferred Stock and Series C-2 Convertible Preferred Stock or (vi) any equity line of credit or similar agreement, if entered into with the consent of Dxxx Xxxxxxxxxxxx. In case any shares of Common Stock, convertible securities or options are issued in connection with the issue or sale of other securities of the Company, together comprising one integrated transaction, each share of Common Stock underlying any such convertible securities or options shall be deemed to be one additional share of Common Stock for the purposes of determining the effective price of the non-Exempt Issuancevote.

Equity Issuances. Except for any Exempt Issuance (as hereinafter defined), in the event the Company issues or sells any securities including options or convertible securities (or amends any outstanding securities of the Company), at an effective price of, or with an exercise or conversion price of less than the Exercise Price, then upon such issuance or sale, the Exercise Price shall be reduced to the sale price or the exercise or conversion price of the securities issued or sold. “Exempt Issuance” shall mean any sale or issuance by the Company of its Common Stock or securities convertible into, exercisable for or exchangeable for Common Stock in connection with (i) full or partial consideration in connection with a strategic merger, acquisition, consolidation or purchase of the securities or assets of a corporation or other entity (or any division or business unit thereof), (ii) the Company’s issuance of securities in connection with strategic supply, sale or license agreements and other partnering arrangements so long as such issuances are not for the purpose of raising capital, (iii) the Company’s issuance of Common Stock, restricted stock units or the issuances or grants of options to purchase Common Stock to employees, officers or directors, under an equity incentive plan adopted by a majority of the non employee members of the Board of Directors of the Company; (iv) securities issued upon the exercise or exchange of or conversion of any convertible securities issued and outstanding on the date of the issuance of Series E to securities holders of the Company in exchange for other securities existing as of the date of this Warrant, (v) the conversion of any of the Company’s Series EC-1, Series C-1 Convertible Preferred Stock and C-2, Series C-2 E or Series F Convertible Preferred Stock or (vi) any equity line of credit or similar agreement, if entered into with the consent of Dxxx Xxxxxxxxxxxx. In case any shares of Common Stock, convertible securities or options are issued in connection with the issue or sale of other securities of the Company, together comprising one integrated transaction, each share of Common Stock underlying any such convertible securities or options shall be deemed to be one additional share of Common Stock for the purposes of determining the effective price of the non-Exempt Issuance.