Exempted Issuances. Notwithstanding any other provision herein, the foregoing provisions of this Section 3 shall not apply to, and no adjustment shall be made to the Per Share Warrant Price for:
Exempted Issuances. The provisions of Sections 8.1 through Section 8.5 above shall not apply to the following issuances of Securities:
Exempted Issuances. The participation right contained in this Section 2 shall not apply to the issuance by the Company of New Securities (i) upon conversion of any securities registrable under the Securities Act; (ii) to officers, directors or employees of, or consultants to, the Company pursuant to a warrant, stock grant, option agreement or plan, purchase plan or other employee stock incentive program or agreement approved by the Board of Directors; (iii) in connection with the acquisition by the Company of another business entity or majority ownership thereof approved by the Board of Directors; (iv) to lease companies, real estate lessors, banks or financial institutions, in connection with any lease or debt financing transaction approved by the Board of Directors; (v) to purchase equipment or services; (vi) upon exercise of warrants outstanding as of the date of this Agreement; (vii) in connection with any stock split, stock dividend, distribution, recapitalization or similar event; (viii) in connection with a strategic investment and/or acquisition of technology or intellectual property not principally for equity financing purposes approved by the Board of Directors; (ix) pursuant to the Purchase Agreement, including without limitation issuances of shares of Series D Preferred Stock; or (x) by way of a dividend or other distribution on New Securities described in the foregoing clauses (i) through (ix).
Exempted Issuances. The right of first refusal contained in this Section 3 shall not apply to the issuance by the Company of Equity Securities (i) upon conversion of the Securities; (ii) to officers, directors or employees of, or consultants to, the Company pursuant to a warrant, stock grant, option agreement or plan, purchase plan or other employee stock incentive program or agreement approved by the Board of Directors (each such agreement or plan, an “Incentive Plan”); (iii) in connection with the acquisition by the Company of another business entity or majority ownership thereof approved by the Board of Directors, including the affirmative vote of at least one (1) director designated by the holders of the Series A Preferred Stock, one (1) director designated by the holders of the Series B Preferred Stock and one (1) director designated by the holders of the Series D Preferred Stock; (iv) to lease companies, real estate lessors, banks or financial institutions, in connection with any lease or debt financing transaction approved by the Board of Directors including one (1) director designated by the holders of the Series A Preferred Stock, one (1) director designated by the holders of the Series B Preferred Stock and one (1) director designated by the holders of the Series D Preferred Stock; (v) upon exercise of warrants outstanding as of the date of this Agreement or issued in accordance with this Section 3.5; (vi) in connection with any stock split, stock dividend, distribution, recapitalization or similar event; (vii) in connection with a strategic investment and/or acquisition of technology or intellectual property not principally for equity financing purposes approved by the Board of Directors, including the affirmative vote of at least one (1) director designated by the holders of the Series A Preferred Stock, one (1) director designated by the holders of the Series B Preferred Stock and one (1) director designated by the holders of the Series D Preferred Stock; (viii) in connection with the Initial Public Offering; (ix) pursuant to the Purchase Agreement; or (x) by way of a dividend or other distribution on Equity Securities described in the foregoing clauses (i) through (ix).
Exempted Issuances. The participation right contained in this Section 4 shall not apply to the issuance by the Company of Equity Securities (i) upon conversion of the Preferred Stock; (ii) of up to 1,566,666 shares of Common Stock to officers, directors or employees of, or consultants to, the Company pursuant to a warrant, stock grant, option agreement or plan, purchase plan or other employee stock incentive program or agreement approved by the Board of Directors; (iii) in connection with the acquisition by the Company of another business entity or majority ownership thereof approved by the Board of Directors; (iv) to leasing companies, real estate lessors, banks or financial institutions, in connection with any lease or debt financing transaction approved unanimously by the Board of Directors; (v) in connection with any stock split, stock dividend, distribution, recapitalization or similar event; (vi) in connection with a strategic investment and/or acquisition of technology or intellectual property not principally for equity financing purposes approved by the Board of Directors; (vii) in connection with an initial public offering of the Company’s securities in which the offering price of the Company’s common stock is at least $6.43 per share and the gross proceeds to be raised in such offering are at least US$34,000,000 (less the total of all private sales of securities by the Company prior to the Initial Public Offering (as defined herein) commencing with the sale of securities pursuant to the Purchase Agreement in the amount of $10,000,000), prior to underwriters’ discounts, commissions and expenses (“Initial Public Offering”); (viii) pursuant to the Purchase Agreement; (ix) to KHD Humboldt Wedag International, Ltd. or its subsidiaries and affiliates to purchase up to an additional 1,333,333 shares of the Company’s Series A Preferred Stock on the terms set forth in the Purchase Agreement, provided they do so on or prior to February 16, 2007; or (x) by way of a dividend or other distribution on Equity Securities described in the foregoing clauses (i) through (ix).
Exempted Issuances. The provisions of Clause 7.1 through Clause 7.5 shall not apply to any issuance by the Company of Equity Securities:
Exempted Issuances. For purposes hereof, “Exempted Issuances” shall mean (A) shares of Common Stock issued or deemed to have been issued by SDINC pursuant to an Approved Stock Plan (as defined below) outstanding on the date hereof, but in any event, not in excess of 500,000 shares of Common Stock (including any Options or other rights exercisable therefor) in any twelve-month period; (B) shares of common stock issued or deemed to have been issued by SDINC pursuant to this Agreement or the Warrant issued to EQ Partners LLC (or its assigns); (C) shares of common stock issued or deemed to have been issued upon the conversion, exchange or exercise of any Option or Convertible Security outstanding on the date hereof and disclosed to SDLP in writing, provided that the terms of such Option or Convertible Security are not amended or otherwise modified on or after such date, and provided that the conversion price, exchange price, exercise price or other purchase price is not reduced, adjusted or otherwise modified and the number of shares issued or issuable is not increased (whether by operation of, or in accordance with, the relevant governing documents or otherwise) on or after the date hereof; (D) Conversion Shares issued or deemed to have been issued to SDINC upon conversion of the Note; and (E) securities issued pursuant to the acquisition of another entity by either Borrower that is approved by SDLP, by merger, purchase of all or substantially all of the assets of such entity or other transaction whereby such Borrower shall become directly or indirectly the owner of more than 25% of the aggregate voting power of all classes of the voting securities of such other entity; provided, that the foregoing provision does not provide SDLP with the right to prevent or approve any acquisition or merger itself, and any such SDLP approval shall only determine whether such acquisition or merger is an Exempted Issuance. For purposes hereof, an “Approved Stock Plan” shall mean any stock incentive plan that has been adopted for bona fide incentive compensation purposes and approved by the board of directors and stockholders of SDINC, pursuant to which the SDINC’s Common Stock may be issued to any employees or consultants that are not founders, officers or their affiliates, for services provided to SDINC, which Approved Stock Plan shall not permit the granting of securities that would constitute greater than ten percent (10%) of the outstanding capital stock of Company calculated on a fully-dilut...
Exempted Issuances. The adjustments to the Conversion Price and the number of Conversion Shares provided in this Section 8 shall not apply with respect to any of the following (each an “Exempted Issuance”): (i) the grant or issuance of stock options, restricted shares, stock appreciation rights (or shares issued upon exercise of such options or appreciation rights) to directors, officers or employees of the Corporation or consultants to the Corporation under plans that were approved by the Corporation’s Board of Directors prior to the date of the Securities Purchase Agreement and are disclosed therein, or which after the closing of the Securities Purchase Agreement are approved by the holders of a majority of the outstanding shares of Series B Preferred Stock and by the Corporation’s Board of Directors (but any member of the Board of Directors who is employed by the Corporation shall not vote on such approval); and (ii) the issuance of shares of Common Stock upon the exercise of stock options or stock purchase warrants that were outstanding as of the date of the Securities Purchase Agreement and disclosed therein or that are issued upon the exercise of stock options or stock purchase warrants that were issued after the date of the Securities Purchase Agreement with the approvals referred to in clause (i) above.
Exempted Issuances. Notwithstanding any other provision in this Section 3, the foregoing provisions of this Section 3 shall not apply to, and no adjustment shall be made to the Exercise Price or the shares issuable upon exercise of this Warrant for:
Exempted Issuances. Notwithstanding anything to the contrary in this Agreement, New Securities shall not include any of the following securities:(a) common shares and other equity securities issued upon the conversion or exercise of Convertible securities outstanding as of the date of this Agreement, or (b) the shares of the Company issued to Abakan pursuant to Article 10 in the Investment Agreement. Page 36 Investment Agreement– Schedule G Exhibit 10(i)
