Common use of Sale of New Securities Clause in Contracts

Sale of New Securities. The Investor and its Affiliates and their respective Subsidiaries shall have the right to purchase up to its pro rata share (based on its percentage of Beneficial Ownership of the Company, on a fully diluted basis) of all issuances of equity or securities convertible to or exchangeable for equity in the Company from the Closing Date to [ ], 2014 (or until [ ], 2017, provided that Investor’s combined stake (including the Preferred Shares if converted) represents at least ten million (10,000,000) shares of Common Stock), if the Investor and/or its Affiliates and/or their respective Subsidiaries have purchased the Preferred Shares, if at any time or from time after the Closing Date, the Company makes any public or non-public offering of any equity securities (including Common Stock or preferred shares, options or debt that is convertible or exchangeable into equity securities or that include an equity component, such as an “equity” kicker, including any hybrid security) (any such security, a “New Security”) for cash (excluding the issuance or sale in the aggregate of up to 200,000 shares of Common Stock in any six month period through the equity distribution agreement with JMP Securities or the standby equity distribution agreement with YA Global Master SPV Ltd., or any similar equity distribution arrangement executed prior to the day hereof and, for the avoidance of doubt, other than (1) pursuant to the granting of employee equity awards, in each case in the ordinary course of equity compensation awards or stock purchase plans or dividend reinvestment plans, or (2) issuances for the purposes of consideration in acquisition transactions), the Investor shall be afforded the opportunity to acquire from the Company for the same price and on the same terms as such securities are proposed to be offered to others, up to the amount of New Securities in the aggregate required to enable it to maintain its then proportionate Common Stock-equivalent interest (including Common Stock issuable upon Preferred Shares Beneficially Owned by Investor), subject to the limitation set forth in Section 2(a)(i)(A). The amount of New Securities that the Investor shall be entitled to purchase in the aggregate, subject to the limitations set forth in Section 2(a)(i)(A), shall be determined by multiplying (x) the total number of such offered shares of New Securities by (y) a fraction, the numerator of which is the number of Common Stock held by the Investor (including Common Stock issuable upon Preferred Shares and Warrants beneficially owned by Investor), and the denominator of which is the number of Common Stock then outstanding (including Common Stock issuable upon Preferred Shares and Warrants beneficially owned by Investor).

Sale of New Securities. The From and after the Funding Date, as long as either Investor and its Affiliates and their respective Subsidiaries shall have the right owns an Observer Threshold Interest (before giving effect to purchase up to its pro rata share (based on its percentage any issuances triggering provisions of Beneficial Ownership of the Company, on a fully diluted basis) of all issuances of equity or securities convertible to or exchangeable for equity in the Company from the Closing Date to [ ], 2014 (or until [ ], 2017, provided that Investor’s combined stake (including the Preferred Shares if converted) represents at least ten million (10,000,000) shares of Common Stockthis Section), if the Investor and/or its Affiliates and/or their respective Subsidiaries have purchased the Preferred Shares, if at any time or from time after the Closing Date, that the Company makes any public or non-public nonpublic offering or sale of any equity securities (including Common Stock Stock, preferred stock or preferred sharesrestricted stock, but excluding shares of equity securities and/or options or other rights in respect thereof to be offered solely to directors, members of management, or employees of the Company or Company Subsidiaries or in connection with dividend reinvestment plans, in each case in the ordinary course of the Company’s business consistent with past practice and solely for compensation purposes), or any securities, options or debt that is convertible or exchangeable into equity securities or that include includes an equity component, component (such as an “equity” kicker, ) (including any hybrid security) (any such security, a “New Security”) for cash (excluding the issuance or sale in the aggregate of up to 200,000 shares of Common Stock in any six month period through the equity distribution agreement with JMP Securities or the standby equity distribution agreement with YA Global Master SPV Ltd., or any similar equity distribution arrangement executed prior to the day hereof and, for the avoidance of doubt, other than (1) pursuant to the granting of employee equity awards, in each case in the ordinary course of equity compensation awards or stock purchase plans or dividend reinvestment plans, or (2) issuances for the purposes of consideration in acquisition transactions), the each such Investor owning an Observer Threshold Interest shall be afforded the opportunity to acquire from the Company for the same price and on the same terms (except that the Investor may elect to receive such securities in nonvoting form, convertible into voting securities in a widely dispersed offering) as such securities are proposed to be offered to others, up to the amount of New Securities in the aggregate required to enable it to maintain its then proportionate Common Stock-equivalent interest (including Common Stock issuable upon Preferred Shares Beneficially Owned by Investor), subject in the Company immediately prior to the limitation set forth in Section 2(a)(i)(A)any such issuance of New Securities. The amount of New Securities that the such Investor shall be entitled to purchase in the aggregate, subject to the limitations set forth in Section 2(a)(i)(A), aggregate shall be determined by multiplying (x) the total number or principal amount of such offered shares of New Securities by (y) a fraction, the numerator of which is the number of shares of Common Stock held by the Investor (including plus the number of shares of Common Stock issuable or other capital stock of the Company that would be issued to the Investor upon Preferred Shares and Warrants beneficially owned the exercise in full by Investor)such Investor of the Warrant, and the denominator of which is the number of shares of Common Stock then outstanding (including plus the number of shares of Common Stock issuable or other capital stock of the Company that would be issued to the Investor upon Preferred Shares and Warrants beneficially owned the exercise in full by Investor)such Investor of the Warrant.

Sale of New Securities. The From and after the Funding Date, as long as either Investor and its Affiliates and their respective Subsidiaries shall have the right owns an Observer Threshold Interest (before giving effect to purchase up to its pro rata share (based on its percentage any issuances triggering provisions of Beneficial Ownership of the Company, on a fully diluted basis) of all issuances of equity or securities convertible to or exchangeable for equity in the Company from the Closing Date to [ ], 2014 (or until [ ], 2017, provided that Investor’s combined stake (including the Preferred Shares if converted) represents at least ten million (10,000,000) shares of Common Stockthis Section), if the Investor and/or its Affiliates and/or their respective Subsidiaries have purchased the Preferred Shares, if at any time or from time after the Closing Date, that the Company makes any public or non-public nonpublic offering or sale of any equity securities (including Common Stock Stock, preferred stock or preferred sharesrestricted stock, but excluding shares of equity securities and/or options or other rights in respect thereof to be offered solely to directors, members of management, or employees of the Company or Company Subsidiaries or in connection with dividend reinvestment plans, in each case in the ordinary course of the Company’s business consistent with past practice and solely for compensation purposes), or any securities, options or debt that is convertible or exchangeable into equity securities or that include includes an equity component, component (such as an “equity” kicker, ) (including any hybrid security) (any such security, a “New Security”) for cash (excluding the issuance or sale in the aggregate of up to 200,000 shares of Common Stock in any six month period through the equity distribution agreement with JMP Securities or the standby equity distribution agreement with YA Global Master SPV Ltd., or any similar equity distribution arrangement executed prior to the day hereof and, for the avoidance of doubt, other than (1) pursuant to the granting of employee equity awards, in each case in the ordinary course of equity compensation awards or stock purchase plans or dividend reinvestment plans, or (2) issuances for the purposes of consideration in acquisition transactions“), the each such Investor owning an Observer Threshold Interest shall be afforded the opportunity to acquire from the Company for the same price and on the same terms (except that the Investor may elect to receive such securities in nonvoting form, convertible into voting securities in a widely dispersed offering) as such securities are proposed to be offered to others, up to the amount of New Securities in the aggregate required to enable it to maintain its then proportionate Common Stock-equivalent interest (including Common Stock issuable upon Preferred Shares Beneficially Owned by Investor), subject in the Company immediately prior to the limitation set forth in Section 2(a)(i)(A)any such issuance of New Securities. The amount of New Securities that the such Investor shall be entitled to purchase in the aggregate, subject to the limitations set forth in Section 2(a)(i)(A), aggregate shall be determined by multiplying (x) the total number or principal amount of such offered shares of New Securities by (y) a fraction, the numerator of which is the number of shares of Common Stock held by the Investor (including plus the number of shares of Common Stock issuable or other capital stock of the Company that would be issued to the Investor upon Preferred Shares and Warrants beneficially owned the exercise in full by Investor)such Investor of the Warrant, and the denominator of which is the number of shares of Common Stock then outstanding (including plus the number of shares of Common Stock issuable or other capital stock of the Company that would be issued to the Investor upon Preferred Shares and Warrants beneficially owned the exercise in full by Investor)such Investor of the Warrant.

Sale of New Securities. The Investor and its Affiliates and their respective Subsidiaries shall have the right to purchase up to its pro rata share (based on its percentage of Beneficial Ownership of the Company, on a fully diluted basis) of all issuances of equity or securities convertible to or exchangeable for equity in the Company from the Closing Date to [ ]January 31, 2014 2015 (or until [ ]January 31, 20172018, provided that Investor’s combined stake (including the Preferred Shares if converted) represents at least ten million (10,000,000) shares of Common Stock), if the Investor and/or its Affiliates and/or their respective Subsidiaries have purchased the Preferred Shares, if at any time or from time after the Closing Date, the Company makes any public or non-public offering of any equity securities (including Common Stock or preferred shares, options or debt that is convertible or exchangeable into equity securities or that include an equity component, such as an “equity” kicker, including any hybrid security) (any such security, a “New Security”) for cash (excluding the issuance or sale in the aggregate of up to 200,000 shares of Common Stock in any six month period through the equity distribution agreement with JMP Securities or the standby equity distribution agreement with YA Global Master SPV Ltd., or any similar equity distribution arrangement executed prior to the day hereof and, for the avoidance of doubt, other than (1) pursuant to the granting of employee equity awards, in each case in the ordinary course of equity compensation awards or stock purchase plans or dividend reinvestment plans, or (2) issuances for the purposes of consideration in acquisition transactions), the Investor shall be afforded the opportunity to acquire from the Company for the same price and on the same terms as such securities are proposed to be offered to others, up to the amount of New Securities in the aggregate required to enable it to maintain its then proportionate Common Stock-equivalent interest (including Common Stock issuable upon Preferred Shares Beneficially Owned by Investor), subject to the limitation set forth in Section 2(a)(i)(A). The amount of New Securities that the Investor shall be entitled to purchase in the aggregate, subject to the limitations set forth in Section 2(a)(i)(A), shall be determined by multiplying (x) the total number of such offered shares of New Securities by (y) a fraction, the numerator of which is the number of Common Stock held by the Investor (including Common Stock issuable upon Preferred Shares and Warrants beneficially owned by Investor), and the denominator of which is the number of Common Stock then outstanding (including Common Stock issuable upon Preferred Shares and Warrants beneficially owned by Investor).

Sale of New Securities. The As long as the Investor and its Affiliates and their respective Subsidiaries owns Securities representing the Qualifying Ownership Interest (before giving effect to any issuances triggering this Section), the Investor shall have the right right, or shall at any time and from time to purchase up time to its pro rata share (based on its percentage of Beneficial Ownership appoint a non-stockholder Affiliate of the Company, on a fully diluted basis) Investor that agrees in writing for the benefit of all issuances the Company to be bound by the terms of equity or securities convertible to or exchangeable for equity this Agreement (any such Affiliate shall be included in the Company from term “Investor”), to exercise the gross-up rights set forth in this Section 4.3 (the Investor or such Affiliate, a “Gross-Up Entity”). As long as the Investor owns Securities representing the Qualifying Ownership Interest (before giving effect to any issuances triggering this Section), if at any time after the Closing Date to [ ], 2014 (or until [ ], 2017, other than the Public Offering provided that Investor’s combined stake (including the Preferred Shares if converted) represents at least ten million (10,000,000) shares of Common Stock)that, if the Investor and/or its Affiliates and/or their respective Subsidiaries have purchased exercises the Preferred SharesBackstop Option, if the Investor is permitted to close on the Backstop Option), the Company at any time or from time after the Closing Date, the Company to time makes any public or non-public offering of any equity securities (including Common Stock or Stock, preferred sharesstock and restricted stock), of any securities, options or debt that is are convertible or exchangeable into equity securities or that include an equity component, component (such as an “equity” kicker, ) (including any hybrid security) (any such security, a “New Security”) for cash (excluding the issuance or sale in the aggregate of up to 200,000 shares of Common Stock in any six month period through the equity distribution agreement with JMP Securities or the standby equity distribution agreement with YA Global Master SPV Ltd., or any similar equity distribution arrangement executed prior to the day hereof and, for the avoidance of doubt, other than (1) pursuant to the granting or exercise of employee equity awardsstock options or other stock incentives pursuant to the Company’s stock incentive plans or the issuance of stock pursuant to the Company’s employee stock purchase plan, in each case in the ordinary course of equity compensation awards or stock purchase plans or dividend reinvestment plansawards, or (2) issuances for the purposes of consideration in acquisition transactions), the Investor Gross-Up Entity shall be afforded the opportunity to acquire from the Company for the same price (net of any underwriting discounts or sales commissions) and on the same terms (except that, to the extent permitted by law and the Company’s certificate of incorporation and by-laws, the Gross-Up Entity may elect to receive such securities in nonvoting form, convertible into voting securities in a widely dispersed offering) as such securities are proposed to be offered to others, up to the amount of New Securities in the aggregate required to enable it to maintain its then proportionate Common Stock-equivalent interest (including Common Stock issuable upon Preferred Shares Beneficially Owned by Investor), subject to in the limitation set forth in Section 2(a)(i)(A)Company. The amount of New Securities that the Investor Gross-Up Entity shall be entitled to purchase in the aggregate, subject to the limitations set forth in Section 2(a)(i)(A), aggregate shall be determined by multiplying (x) the total number of such offered shares of New Securities by (y) a fraction, the numerator of which is the number of shares of Common Stock held by the Investor (including plus the number of shares of Common Stock issuable upon represented by the Preferred Shares and Warrants beneficially owned Stock held by Investor)the Investor on an as-converted basis as of such date, and the denominator of which is the number of shares of Common Stock then outstanding (including plus the number of shares of Common Stock issuable upon represented by the Preferred Shares and Warrants beneficially owned Stock held by Investor)the Investor on an as-converted basis as of such date.