Common use of Exempt Issuance Clause in Contracts

Exempt Issuance. Notwithstanding the foregoing, no adjustment will be made under this Section 8(g) in respect of an Exempt Issuance. For the purposes of the Warrants, “Exempt Issuance” means the issuance of (a) shares of Common Stock, Convertible Securities, restricted stock units, Options or common stock equivalents to employees, consultants officers or directors of the Company pursuant to any existing or future stock option, restricted stock, stock purchase or other equity compensation plan or arrangement, including, without limitation, employee inducement awards and deferred compensation arrangements, duly adopted for such purpose, by a majority of the non-employee members of the Board or a majority of the members of a committee of non-employee directors established for such purpose, and the issuance of Common Stock in respect of such Convertible Securities, restricted stock units, Options or common stock equivalents, (b) securities (including Common Stock and common stock equivalents) upon the exercise, conversion or exchange of securities (including Convertible Securities and Options, and including the issuance of Common Stock in full satisfaction of any interest or coupon make-whole payments due in connection therewith) issued and outstanding on the date hereof, including the Warrants, provided that such securities have not been amended since the date hereof to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities, (c) securities issued (including Options and Convertible Securities) or the filing of a registration statement by the Company in connection with or in accordance with any Shareholder Rights Agreement as may be entered into from time to time by the Company to implement a so-called poison pill as the same may be amended, supplemented or modified, (d) securities issued (i) pursuant to acquisitions of businesses, entities, rights or other assets, (ii) in connection with strategic transactions, including joint ventures, manufacturing, marketing or distribution arrangements or technology license, transfer or development arrangements, and (iii) pursuant to any equipment leasing or loan arrangement, credit financing or debt financing (and the issuance of Common Stock upon the exercise of such securities, if applicable), in each case, approved by the Board and not primarily for the purpose of raising capital, as determined in good faith by the Board, (e) securities issued to vendors, consultants and service providers of the Company as compensation or to settle bona fide trade liabilities, (f) securities with an aggregate consideration payable to the Company of less than $500,000 in any twelve month period and (g) securities issued in a transaction described in Section 8(a) above.

Exempt Issuance. Notwithstanding the foregoing, no adjustment will be made under this Section 8(g) in respect of an Exempt Issuance. For the purposes of the Warrants, “Exempt Issuance” means the issuance of (a) shares of Common Stock, Convertible Securities, restricted stock units, Options or common stock equivalents to employees, consultants officers or directors of the Company pursuant to any existing or future stock option, restricted stock, stock purchase or other equity compensation plan or arrangement, including, without limitation, employee inducement awards and deferred compensation arrangements, duly adopted for such purpose, by a majority of the non-employee members of the Board or a majority of the members of a committee of non-employee directors established for such purpose, and the issuance of Common Stock in respect of such Convertible Securities, restricted stock units, Options or common stock equivalents, (b) securities (including Common Stock and common stock equivalents) upon the exercise, conversion or exchange of securities (including Convertible Securities and Options, and including the issuance of Common Stock in full satisfaction of any interest or coupon make-whole payments due in connection therewith) issued and outstanding on the date hereof, including the Warrants, provided that such securities have not been amended since the date hereof to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities, (c) securities issued (including Options and Convertible Securities) or the filing of a registration statement by the Company in connection with or in accordance with any Shareholder Rights Agreement as may be entered into from time to time by the Company to implement a so-called poison pill as the same may be amended, supplemented or modified, (d) securities issued (i) pursuant to acquisitions of businesses, entities, rights or other assets, (ii) in connection with strategic transactions, including joint ventures, manufacturing, marketing or distribution arrangements or technology license, transfer or development arrangements, and (iii) pursuant to any equipment leasing or loan arrangement, credit financing or debt financing (and the issuance of Common Stock upon the exercise of such securities, if applicable), in each case, approved by the Board and not primarily for the purpose of raising capital, as determined in good faith by the Board, (e) securities issued to vendors, consultants and service providers of the Company as compensation or to settle bona fide trade liabilities, and (f) securities with an aggregate consideration payable to the Company of less than $500,000 in any twelve month period and (g) securities issued in a transaction described in Section 8(a) or 8(b) above.

Exempt Issuance. Notwithstanding the foregoing, no adjustment will be made under this Section 8(g) in respect of an Exempt Issuance. For the purposes of the Warrantsthis Section 3, “Exempt Issuance” means shall mean the issuance of (aA) shares of Common Stock or shares of the Company’s Series A Convertible Preferred Stock, Convertible Securitiespar value $0.0001 per share (the “Series A Preferred Stock”) issued as dividends with respect to the Series A Preferred Stock, restricted stock units(B) shares of Common Stock issued or issuable upon conversion or exercise of any convertible debt or equity securities or warrants outstanding as of the Secondary Closing Date (or as of the Initial Closing Date if there is no Secondary Closing Date), Options and in accordance with the terms thereof on such date, (C) shares of Common Stock or common stock equivalents to employeesCommon Stock Equivalents (or Common Stock issued upon exercise, consultants officers exchange or directors conversion of Common Stock Equivalents) issued in connection with any stock-based compensation plans of the Company approved by the stockholders of the Company and the Board, (D) shares of Common Stock issued pursuant to any existing or future stock optiona firm commitment underwritten public offering, restricted stock, stock purchase or other equity compensation plan or arrangement, including, without limitation, employee inducement awards and deferred compensation arrangements, duly adopted for such purpose, the terms of which are approved by the Company’s Board of Directors (including a majority of the non-employee members independent directors serving on the Board), (E) securities or rights to acquire securities issued to financial institutions in connection with commercial credit arrangements, equipment financings, service agreements or similar transactions approved by the Company’s Board of Directors and the primary purpose of which is not equity financing, (F) securities or rights to acquire securities issued in connection with strategic acquisitions, collaborations, development agreements, joint ventures or licensing transactions or to consultants or other service providers of the Company, the terms of which are approved by the Board or (including a majority of the members of a committee of non-employee independent directors established for such purpose, and the issuance of Common Stock in respect of such Convertible Securities, restricted stock units, Options or common stock equivalents, (b) securities (including Common Stock and common stock equivalents) upon the exercise, conversion or exchange of securities (including Convertible Securities and Options, and including the issuance of Common Stock in full satisfaction of any interest or coupon make-whole payments due in connection therewith) issued and outstanding serving on the date hereofBoard or (G) Series A Preferred Stock issued on or prior to December 31, including the Warrants, provided that such securities have not been amended since the date hereof to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities, (c) securities issued (including Options and Convertible Securities) or the filing of a registration statement by the Company in connection with or in accordance with any Shareholder Rights Agreement as may be entered into from time to time by the Company to implement a so-called poison pill as the same may be amended, supplemented or modified, (d) securities issued (i) pursuant to acquisitions of businesses, entities, rights or other assets, (ii) in connection with strategic transactions, including joint ventures, manufacturing, marketing or distribution arrangements or technology license, transfer or development arrangements, and (iii) pursuant to any equipment leasing or loan arrangement, credit financing or debt financing (and the issuance of Common Stock upon the exercise of such securities, if applicable), in each case, approved by the Board and not primarily for the purpose of raising capital, as determined in good faith by the Board, (e) securities issued to vendors, consultants and service providers of the Company as compensation or to settle bona fide trade liabilities, (f) securities with an aggregate consideration payable to the Company of less than $500,000 in any twelve month period and (g) securities issued in a transaction described in Section 8(a) above2009.

Exempt Issuance. Notwithstanding the foregoing, no adjustment will be made under this Section 8(gparagraph (e) in respect of an Exempt Issuance. For the purposes of the Warrantsthis Warrant, “Exempt Issuance” means the issuance of (a) shares of Common Stock, Convertible SecuritiesCommon Stock Equivalents, restricted stock units, units or other Options or common stock equivalents to employees, consultants officers or directors of the Company pursuant to any existing or future stock option, restricted stock, stock purchase or other equity compensation plan or arrangement, including, without limitation, employee inducement awards and deferred compensation arrangements, duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose, and the issuance of Common Stock in respect of such Convertible SecuritiesCommon Stock Equivalents, restricted stock units, Options units or common stock equivalentsother Options, (b) securities (including Common Stock and common stock equivalentsCommon Stock Equivalents) upon the exercise, conversion or exchange of securities (including Convertible Securities and Options, and including the issuance of Common Stock in full satisfaction of any interest or coupon make-whole payments due in connection therewith) issued and outstanding on the date hereof, including the Warrants, provided that such securities have not been amended since the date hereof to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities, (c) securities issued (including Options and Convertible SecuritiesOptions) or the filing of a registration statement by the Company in connection with or pursuant to and in accordance with any the terms of the Shareholder Rights Agreement as may be entered into from time to time by Agreement, dated June 23, 2009, between the Company to implement a so-called poison pill and American Stock Transfer & Trust Company LLC, as the same may be amended, supplemented or modified, (d) securities issued (i) pursuant to acquisitions or strategic transactions approved by a majority of businessesthe disinterested directors of the Company, entitiesprovided that any such issuance shall only be to a Person (or to the equityholders of a Person) that the Company’s Board of Directors determines in good faith is, rights itself or other assetsthrough its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not, for the purposes of this clause (ii) in connection with strategic transactions, including joint ventures, manufacturing, marketing or distribution arrangements or technology license, transfer or development arrangements, and (iii) pursuant to any equipment leasing or loan arrangement, credit financing or debt financing (and the issuance of Common Stock upon the exercise of such securities, if applicabled), include a transaction in each case, approved by which the Board and not Company is issuing securities primarily for the purpose of raising capitalcapital or to an entity whose primary business is investing in securities, as determined in good faith by the Board, and (e) .the issuance of securities issued to vendors, consultants and service providers of the Company as compensation or to settle bona fide trade liabilities, (f) securities with an aggregate consideration payable to the Company of less than $500,000 in any twelve month period and (g) securities issued in a transaction described in Section 8(a3(a) or 3(b) above.

Exempt Issuance. Notwithstanding the foregoing, no adjustment will be made under this Section 8(g) in respect of an Exempt Issuance. For the purposes of the Warrants, “Exempt Issuance” means the issuance of (a) shares of Common Stock, Convertible Securities, restricted stock units, Options or common stock equivalents to employees, consultants officers or directors of the Company pursuant to any existing or future stock option, restricted stock, stock purchase or other equity compensation plan or arrangement, including, without limitation, employee inducement awards and deferred compensation arrangements, duly adopted for such purpose, by a majority of the non-employee members of the Board or a majority of the members of a committee of non-employee directors established for such purpose, and the issuance of Common Stock in respect of such Convertible Securities, restricted stock units, Options or common stock equivalents, (b) securities (including Common Stock and common stock equivalents) upon the exercise, conversion or exchange of securities (including Convertible Securities and Options, and including the issuance of Common Stock in full satisfaction of any interest or coupon make-whole payments due in connection therewith) issued and outstanding on the date hereof, including the Warrants, provided that such securities have not been amended since the date hereof to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities, (c) securities issued (including Options and Convertible Securities) or the filing of a registration statement by the Company in connection with or in accordance with any Shareholder Rights Agreement as may be entered into from time to time by the Company to implement a so-called poison pill as the same may be amended, supplemented or modified, (d) securities issued (i) pursuant to acquisitions of businesses, entities, rights or other assets, (ii) in connection with strategic transactions, including joint ventures, manufacturing, marketing or distribution arrangements or technology license, transfer or development arrangements, and (iii) pursuant to any equipment leasing or loan arrangement, credit financing or debt financing (and the issuance of Common Stock upon the exercise of such securities, if applicable), in each case, approved by the Board and not primarily for the purpose of raising capital, as determined in good faith by the Board, (e) securities issued to vendors, consultants and service providers of the Company as compensation or to settle bona fide trade liabilities, (f) securities with not to exceed an aggregate consideration payable to the Company of less than $500,000 in any twelve month period period, valued based on the Market Price of the securities on the date of issuance, (f) securities issued to XX Xxxx, Ltd. or its affiliates pursuant to that certain Fee Letter, dated January 29, 2015, provided that the amount of the fee and the conversion price set forth therein are not amended after the date hereof, and (g) securities issued in a transaction described in Section 8(a) above.

Exempt Issuance. Notwithstanding the foregoing, no adjustment will be made under this Section 8(g) in respect of an Exempt Issuance. For the purposes of the Warrantsthis Warrant, “Exempt Issuance” means the issuance of (a) shares of Common Stock, Convertible Securities, restricted stock units, Options options or common stock equivalents other equity-based awards to employees, officers, consultants officers or directors of the Company pursuant to any existing stock or future stock option, restricted stock, stock purchase or other equity compensation option plan or arrangement, including, without limitation, employee inducement awards and deferred compensation arrangements, duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose, and the issuance of Common Stock in respect of such Convertible Securities, restricted stock units, Options or common stock equivalents, (b) securities (including Common Stock and common stock equivalents) upon the exercise, conversion exercise or exchange of securities (including Convertible Securities and Options, and including the issuance or exchangeable for or convertible into shares of Common Stock in full satisfaction of any interest or coupon make-whole payments due in connection therewith) issued and outstanding on the date hereof, including the Warrants, provided that such securities have not been amended since the date hereof to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities, (c) securities issued (including Options and Convertible Securities) or the filing of a registration statement by the Company in connection with or in accordance with any Shareholder Rights Agreement as may be entered into from time to time by the Company to implement a so-called poison pill as the same may be amended, supplemented or modified, (d) securities issued (i) pursuant to acquisitions of businessesor strategic transactions (including without limitation, entitiessponsored research, rights or other assetscollaboration, (ii) in connection with strategic transactions, including joint ventures, manufacturing, marketing or distribution arrangements or technology license, transfer development, distribution, marketing, or development arrangementssimilar arrangement or alliance) approved by a majority of the disinterested directors of the Company, provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not, for the purposes of this clause (iii) pursuant to any equipment leasing or loan arrangement, credit financing or debt financing (and the issuance of Common Stock upon the exercise of such securities, if applicablec), include a transaction in each case, approved by which the Board and not Company is issuing securities primarily for the purpose of raising capitalcapital or to an entity whose primary business is investing in securities, as determined in good faith by (d) securities upon the Boardexercise of the Company’s Series B Warrants issued on the Original Issue Date (including shares of Common Stock issuable upon the exercise of the additional Warrants issuable upon the exercise of such Series B Warrants), (e) securities issued or issuable to vendorsparties providing equipment leases, consultants and service providers real property leases, credit lines or similar transactions pursuant to debt financing or commercial arrangements approved by a majority of the Company as compensation or to settle bona fide trade liabilitiesdisinterested directors of the Company, and (f) securities with an aggregate consideration payable to the Company of less than $500,000 in any twelve month period and (g) securities issued in a transaction described in Section 8(a) abovetransactions that are included within the definition of an “Exempt Issuance” by the approval of the Required Holders.