Excepted Issuances Clause Samples

Excepted Issuances. For purposes of Section 5.3, “Excepted Issuance” shall mean in respect to: (i) Common Stock or Common Stock Equivalents issued in connection with this Agreement or otherwise related to this Agreement for other or subsequent investors in said offering under the same terms, (ii) the Company’s issuance of Common Stock or Common Stock Equivalents upon the exercise or conversion of options, warrants or convertible notes or other securities, outstanding on the date hereof as specifically described in SEC Reports (but not if the amounts and exercise prices of the same are not both already described in the SEC Reports or if they are subsequently adjusted to an Effective Price below the Per Share Price in this offering) or specifically disclosed herein, (iii) grants or issuances to officers, directors or employees or other service providers in connection with Board approved (including majority of disinterested and independent board members) stock option, stock, incentive or similar plan to the extent that such plan is in effect and has securities remaining issuable under said plan as of the date of this Agreement (iv) the issuance of securities as full or partial consideration in connection with a bona fide merger, asset acquisition, joint venture or reorganization (other than a mere reincorporation transaction) approved by the Board of Directors of the Company and the majority of disinterested members of the Board. For avoidance of doubt, the foregoing Excepted Issuance exceptions shall only apply during the period in which anti-dilution adjustments are made for Lower Price Issuances in accordance with Section 5.3. Common Stock issued or issuable by the Company for services will be deemed to have been issued or to be issued for the value booked in the Company’s public financial statements, or as booked on the recipients 1099 or other tax reporting by the Company in connection with such issuance, whichever is higher.

Excepted Issuances. Convertible Notes and Warrants The Company entered into a series of financing agreements over the last three years under which it issued convertible notes and Class A and Class B Warrants to purchase its common stock. The Company had an aggregate of $3,828,515 in principal outstanding in convertible notes payable and Class A Warrants outstanding to purchase an aggregate of 69,538,349 shares of common stock at exercise prices ranging from $0.035 to $15.00 per share, with expiration dates ranging from April 2011 to July 2015. The Class B Warrants will be issued upon exercise of certain Class A Warrants and have an exercise price of $15.00 per share. Upon exercise of certain Class A Warrants, the Company would have the obligation to issue Class B Warrants to purchase 278,068 shares of common stock at an exercise price of $15.00 per share. Class B Warrants to purchase 35,000 shares of common stock have a three year term and Class B Warrants representing the right to purchase 243,068 shares will expire after five years.

Excepted Issuances. Notwithstanding anything in this Agreement to the contrary, no adjustment under this Agreement shall be made, and a Change of Control shall not be deemed to have occurred, in the event of any issuance that constitutes an Excepted Issuance (as defined below).

Excepted Issuances. The Parties agree that the terms of Section 6.1 shall not apply to: (i) the issuance of New Securities pursuant to the funding of the Debt Tender, provided that the aggregate subscription price of all Shares and PECs issued by Holdco does not exceed €2,612,239,325; (ii) the issuance of New Securities pursuant to the PIK Finance Documents or to fund Transfers under the PIK Finance Documents; (iii) the issuance of New Securities to fund the acquisition of Angel Shares and Angel ADS not tendered in the Offer and outstanding on the Closing Date, provided that the aggregate subscription price of all Shares and PECs issued by Holdco does not exceed €2,612,239,325; (iv) the issuance or grant of New Securities pursuant to any Management Equity Incentive Plan or to officers, employees or consultants of any member of the Group or other persons having a relationship with the Group pursuant to individual employment arrangements or any other equity-based employee benefits plan or arrangement, in each case that has been approved by the Holdco Board; (v) the issuance or sale of New Securities to a seller or its designee in connection with and as consideration for Holdco’s direct or indirect acquisition by merger or other business combination or otherwise of any Person, business or assets, which acquisition has been approved by the Holdco Board; (vi) the issuance or sale of New Securities to financial institutions, commercial lenders or other debt providers or their designees, in connection with commercial loans or other debt financing by such financial institutions, commercial lenders or other debt providers, which are approved by the Holdco Board; (vii) the issuance or sale of New Securities pursuant to any joint venture, partnership or other strategic transaction approved by the Holdco Board; (viii) the issuance of New Securities pursuant to the terms of options or convertible or exchangeable securities or other similar securities which have been issued, sold or granted in compliance with this Article VI; (ix) the issuance of New Securities pursuant to an IPO or other Public Offering; and (x) the issuance of New Securities in connection with any pro rata stock split or stock dividend or any Reorganization Transaction.

Excepted Issuances. Notwithstanding the foregoing, no adjustment will be made under this Section 11(b) in respect of (1) the granting or exercise of options to employees, officers and directors of the Company pursuant to any stock option plan duly adopted by a majority of the non-employee members of the Board of Directors of the Company or a majority of the members of a committee of non-employee directors established for such purpose, (2) the conversion of the Debentures or any Debentures of this series or of any other series or the conversion or exercise of any other security issued by the Company in connection with the offer and sale of the Company's securities pursuant to the Purchase Agreement, (3) the amendment, exercise, conversion or redemption of any Capital Shares Equivalent or Options issued and outstanding on the Original Issue Date, (4) the payment of interest on any Senior Debt in shares of the Company's Common Stock, (5) the issuance of any shares or Capital Shares Equivalent pursuant to the terms of any convertible securities issued and outstanding on the Original Issue Date, or (6) the issuance of securities in connection with acquisitions or strategic investments, the primary purpose of which is not to raise capital. "Senior Debt" shall mean all of the indebtedness identified in Schedule 3.1(x) to the Purchase Agreement.

Excepted Issuances. Excepted issuances shall mean any securities of the Company issued (i) in an underwritten public offering, (ii) as compensation to employees or consultants that would qualify to be registered on a Form S-8 registration statement, (iii) pending issuances listed on Exhibit C hereto (each, an “Excepted Issuance”).

Excepted Issuances. Notwithstanding anything to the contrary contained in this Section 13, the Company may, from the date hereof, without having to submit a Participation Offer to the holders of Convertible Preferred Stock, issue securities pursuant to any of the Excepted Issuances described in the Charter, as amended and/or restated from time to time.

Excepted Issuances. No adjustment shall be made to the Exercise Price and/or the number of shares of Warrant Preferred Stock or Warrant Common Stock, as the case may be, issuable upon exercise of this Warrant pursuant to this Section 5 in connection with the following: (a) the issuance of options to purchase up to 23,478,820 shares of Common Stock of the Company to employees, consultants, officers or directors of the Company pursuant to any stock option, stock purchase or stock bonus plan, agreement or arrangement, which issuance has been approved by the compensation committee of the Board; (b) issuances in connection with the acquisition by the Company of a business entity or segment of any such entity by merger, purchase of stock or assets or otherwise; (c) issuances in connection with any direct or indirect borrowings by the Company, including any type of loan or payment evidenced by any type of debt instrument; (d) issuances in a public offering; (e) issuances of any shares of Series B Preferred Stock, Series C Preferred Stock, or warrants pursuant to that certain Share Exchange Agreement dated as of December 20, 2005 by and among the Company, Advanced Aesthetics, Inc. and certain securityholders of Advanced Aesthetics, Inc.; (f) issuances upon exercise, exchange or conversion of any convertible securities of the Company outstanding as of the date hereof; (g) issuances with respect to which the holders of a majority of the shares of Series C Preferred Stock outstanding at the time of such issuance shall have waived their rights to receive any such adjustment; or (h) issuances upon exercise, exchange or conversion of any security referred to in the preceding clauses (a) through (g).

Excepted Issuances. Each Subscriber is granted the rights described in Section 4.4 hereof in relation to the additional shares of Common Stock issuable in connection with the adjustment described in this Section 4.5. The rights of each Subscriber set forth in this Section 4.5 are in addition to any other rights the Subscriber has pursuant to this Agreement, the Note, and any other agreement referred to or entered into in connection herewith or to which such Subscriber and Company are parties. For purposes of Section 4.5, “Excepted Issuance” shall mean (i) the Company’s issuance of Common Stock or Common Stock Equivalent described in Reports filed not later than five business days before the Closing Date, and (ii) as a result of the conversion of Notes which are granted or issued pursuant to this Agreement.