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:
(a) shares of Stock issuable upon the exercise of options or other convertible securities previously issued pursuant to the Company's stock option, employee stock purchase or other employee benefit plan;
(b) shares of Stock to be issued pursuant to the Company's outstanding stock option, employee stock purchase or other employee benefit plan that total not more than 200,000 shares of Stock per employee per year and an aggregate maximum of 2,000,000 shares of Stock per year and that do not contain exercise prices that are below $0.30 per share;
(c) shares of Stock issuable upon conversion of shares of Series C Preferred Stock or warrants issued in connection therewith;
(d) shares of Stock issuable upon conversion of shares of 7% Convertible Series A Preferred Stock or 5% Convertible Series B Preferred Stock of the Company or any warrants outstanding on the date of the filing of this Designation;
(e) shares of Stock issuable upon conversion of Class B Common Stock;
(f) securities that have been approved for issuance or grant by the holders of at least a majority of the outstanding shares of Series C Preferred Stock; FORM OF PENALTY WARRANT UNDER REGISTRATION RIGHTS AGREEMENT
(g) securities that are issued in conjunction with an acquisition or a non-financing strategic transaction approved by the Board of Directors; provided, however, that the number of shares of Stock or securities convertible into Stock issued by the Company in conjunction with non-financing strategic transactions that are exempt from the foregoing provisions of this Section 3 shall be limited to 10% of the shares of Stock outstanding (including all shares of Stock issued or issuable upon conversion of any convertible security or upon the exercise of any rights, warrants or options) immediately prior to the date of such transaction; or
(h) Shares of Stock that are issued pursuant to that certain Common Stock and Warrant Purchase Agreement dated as of an even date herewith between the Company and Purchaser, pursuant to which the Purchaser is purchasing this Warrant, and the related Registration Rights Agreement referenced therein, including, without limitation, any shares of Stock to be issued in connection with any penalty or anti-dilution provision contained in such documents, any shares of Common Stock issued under t...
Exempted Issuances. The provisions of Sections 8.1 through Section 8.5 above shall not apply to the following issuances of Securities:
(a) any Securities issued in connection with the exercise, conversion or exchange of any Securities of the Company that were not issued in violation of this Section 8, any subdivision of Securities (including any dividend or split), any combination of Securities (including any reverse split) or any recapitalization, reorganization or reclassification of the Company.
(b) any Securities issued to employees, officers, directors, consultants and other service providers of or to the Company or any of its Subsidiaries (other than Vestar or any of its Affiliates) in exchange for services pursuant to any agreement or arrangement approved by the Board;
(c) any securities issued to third party lenders as “equity kickers” in connection with what is primarily a loan transaction pursuant to any agreement or arrangement approved by the Board; and
(d) any securities issued to the sellers or a comparable party in connection with an acquisition, including by merger or consolidation, of any business, entity, asset or group of related assets.
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 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:
(a) in a Qualified IPO;
(b) granted or issued to officers, employees, or Directors of the Company or any of its Subsidiaries as compensation for services pursuant to any ESOP;
(c) upon the conversion of Convertible Securities or the issuance of any Equity Securities pursuant to the terms of the Equity Securities issued in compliance with (or not otherwise in violation of) this Clause 7 or otherwise previously approved in accordance with the terms of this Agreement;
(d) to any existing Shareholders of a class, in connection with any split, subdivision, reverse split, combination, share dividend, share distribution or recapitalization of a class of outstanding Equity Securities of the Company made in compliance with the terms of this Agreement and the provisions of the applicable Laws; and
(e) contemplated under the Transaction Documents, and any Equity Securities so issued shall be excluded from the definition of “New Securities”.
Exempted Issuances. The adjustments to the Exercise Price and the number of Warrant Shares provided in this Section 4 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 Company or consultants to the Company under plans that were approved by the Company’s Board of Directors prior to the date of the Securities Purchase Agreement and are disclosed therein, or which are approved by the Holder and by the Company’s Board of Directors after the closing of the Securities Purchase Agreement (but any member of the Board of Directors who is employed by the Company 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 herein, the foregoing provisions of Section 3.1 shall not apply to, and no adjustment shall be made to the Per Share Warrant Price for:
(a) shares of Common Stock or options to employees, officers or directors of the Company pursuant to any stock or option plan duly adopted for such purpose 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,
(b) securities upon the exercise or exchange of or conversion of any securities issued hereunder and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise, exchange or conversion price of such securities, and
(c) securities issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company, provided that any such issuance shall only be to a person which is, itself or through its subsidiaries, an operating company in a business synergistic with the business of the Company and in which the Company receives benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities.
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.
Exempted Issuances. Without limiting the approval rights under Section 2.3(c), the provisions of Sections 8.1 through Section 8.6 above shall not apply to the following issuances of Securities:
(a) any Securities issued in connection with the exercise, conversion or exchange of any Securities of the Company or Holdings that were not issued in violation of this Article VIII, any subdivision of Securities (including any dividend or split), any combination of Securities (including any reverse split) or any recapitalization, reorganization or reclassification of the Company or Holdings.
(b) any Securities issued to employees, officers, directors, consultants and other service providers of or to the Company or any of its Subsidiaries (other than Vestar or any of its Affiliates) in exchange for services pursuant to any agreement or arrangement approved by the Board;
(c) any securities issued to third party lenders as “equity kickers” in connection with what is primarily a loan transaction pursuant to any agreement or arrangement approved by the Board, except in connection with the exercise by any holder of Convertible Preferred Stock of its participation rights pursuant to Section 8.6(a)(ii); and
(d) any securities issued to the sellers or a comparable party in connection with an acquisition, including by merger or consolidation, of any business, entity, asset or group of related assets.
Exempted Issuances. Notwithstanding the provisions of Sections 7(d)(iii) and (iv), no Conversion Price shall be adjusted for the following issuances of securities:
