Common use of Subsequent Equity Issuances Clause in Contracts

Subsequent Equity Issuances. From and after the date of this Agreement until the date that is thirty (30) days after the date of this Agreement (irrespective of any earlier termination of this Agreement), provided the Initial Purchase has occurred, neither the Company nor any Subsidiary shall issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents (or a combination of units thereof), other than the issuance of (i) Common Stock issuable upon the exercise of options or other equity incentive awards that are issued and outstanding on the date of this Agreement and granted to employees, officers or directors of the Company pursuant to any equity incentive plan duly adopted for such purpose, by the Board of Directors or a majority of the members of a committee of directors established for such purpose, provided that such options and other equity incentive awards referred to in this clause (i) have not been amended since the date of this Agreement to increase the number of such securities or Common Stock underlying such securities or to decrease the exercise price, exchange price or conversion price of such securities, (ii)(A) any Securities issued to the Investor pursuant to this Agreement, (B) shares of Common Stock, Common Stock Equivalents or other securities to the Investor pursuant to any other existing or future contract, agreement or arrangement between the Company and the Investor, or (C) shares of Common Stock, Common Stock Equivalents or other securities upon the exercise, exchange or conversion of any shares of Common Stock, Common Stock Equivalents or other securities held by the Investor at any time, or (iii) any securities issued upon the exercise or exchange of or conversion of any Common Stock Equivalents issued and outstanding on the date of this Agreement, provided that such Common Stock Equivalents referred to in this clause (iii) have not been amended since the date of this Agreement to increase the number of such securities or Common Stock underlying such securities or to decrease the exercise price, exchange price or conversion price of such securities. The Investor shall be entitled to seek injunctive relief against the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages, without the necessity of showing economic loss and without any bond or other security being required. “Common Stock Equivalents” means any securities of the Company or its Subsidiaries which entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.

Subsequent Equity Issuances. From and after the date of this Agreement until the date that is thirty (30) days after following the date of this Agreement Closing Date (the “Lock-Up Period”), irrespective of any earlier termination of this Agreement), provided the Initial Purchase has occurred, neither the Company nor any Subsidiary shall issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents (or a combination of units thereof), other than the issuance of (i) Common Stock issuable upon the exercise of options or other equity incentive awards that are issued and outstanding on the date of this Agreement and granted to employees, officers or directors of the Company pursuant to any equity incentive plan duly adopted for such purpose, by the Board of Directors or a majority of the members of a committee of directors established for such purpose, provided that such options and other equity incentive awards referred to in this clause (i) have not been amended since the date of this Agreement to increase the number of such securities or Common Stock underlying such securities or to decrease the exercise price, exchange price or conversion price of such securities, (ii)(A) any Securities issued to the Investor pursuant to this Agreement, (B) shares of Common Stock, Common Stock Equivalents or other securities to the Investor pursuant to any other existing or future contract, agreement or arrangement between the Company and the Investor, or (C) shares of Common Stock, Common Stock Equivalents or other securities upon the exercise, exchange or conversion of any shares of Common Stock, Common Stock Equivalents or other securities held by the Investor at any time, or (iii) any securities issued upon the exercise or exchange of or conversion of any Common Stock Equivalents issued and outstanding on the date of this Agreement, provided that such Common Stock Equivalents referred to in this clause (iii) have not been amended since the date of this Agreement to increase the number of such securities or Common Stock underlying such securities or to decrease the exercise price, exchange price or conversion price of such securities. The Investor shall be entitled to seek injunctive relief against the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages, without the necessity of showing economic loss and without any bond or other security being requiredconnection with an Exempt Issuance. “Common Stock Equivalents” means any securities of the Company or its Subsidiaries which entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock. “Exempt Issuance” means the issuance of (i) Securities to the Investors pursuant to this Agreement, including issuance of shares of Common Stock upon exercise of the Pre-Paid Warrants (ii) shares of Common Stock, Common Stock Equivalents or other securities to any of the Investors pursuant to any other existing or future contract, agreement or arrangement between the Company and such Investor, (iii) shares of Common Stock pursuant to the Company’s employee stock purchase plan or upon the exercise or conversion of options, warrants or convertible securities disclosed as outstanding in the Registration Statement, the General Disclosure Package and the Prospectus, (iv) the issuance of employee stock options or other equity compensation or awards not exercisable during the Lock-Up Period or exchange of outstanding equity awards pursuant to the Company’s stock option, stock bonus and other stock plans or arrangements, in effect on the date hereof, in the ordinary course of business consistent with past practice, or (v) shares of Common Stock, Common Stock Equivalents or other securities issued in connection with the Restructuring Transactions.

Subsequent Equity Issuances. From and after the date of this Agreement until the date that is thirty (30) days after the date of this Agreement (irrespective of any earlier termination of this Agreement), provided the Initial Purchase has occurred, neither Neither the Company nor any Subsidiary shall will offer, sell, issue, enter into any agreement contract to sell, contract to issue or announce the issuance otherwise dispose of, directly or proposed issuance of indirectly, any other shares of Common Stock or securities exercisable, exchangeable or convertible into Common Stock Equivalents (or a combination of units thereof), “Common Stock Equivalents”) (other than the Placement Shares) during the period beginning on the fifth (5th) Trading Day immediately prior to the date on which any Sales Notice is delivered to the Sales Agents hereunder and ending on the third (3rd) Trading Day immediately following the final Settlement Date with respect to Placement Shares sold pursuant to such Placement Notice without the written consent of the Sales Agents; provided, however, that such restrictions will not apply in connection with the Company’s issuance or sale of (i) Common Stock, options to purchase Common Stock or Common Stock issuable upon the exercise of options, pursuant to any stock option, or benefits or incentive plan, stock ownership plan or dividend reinvestment plan (but not Common Stock subject to a waiver to exceed plan limits in its dividend reinvestment plan) of the Company whether now in effect or hereafter implemented; (ii) Common Stock issuable upon conversion of securities or the exercise of warrants, options or other equity incentive awards that are issued rights in effect or outstanding, and outstanding on the date of this Agreement and granted to employees, officers or directors of disclosed in filings by the Company pursuant available on EXXXX or otherwise in writing to any equity incentive plan duly adopted for such purpose, by the Board of Directors or a majority of the members of a committee of directors established for such purpose, provided that such options and other equity incentive awards referred to in this clause (i) have not been amended since the date of this Agreement to increase the number of such securities or Common Stock underlying such securities or to decrease the exercise price, exchange price or conversion price of such securitiesSales Agents, (ii)(Aiii) any Securities issued to the Investor pursuant to this Agreement, (B) shares of Common Stock, Common Stock Equivalents or other securities to the Investor pursuant to any other existing or future contract, agreement or arrangement between the Company and the Investor, or (C) shares of Common Stock, Common Stock Equivalents or other securities upon the exercise, exchange or conversion of any shares of Common Stock, Common Stock Equivalents or other securities held by the Investor at any time, or (iii) any securities issued upon the exercise or exchange of or conversion of any Common Stock Equivalents issued and outstanding on the date of this Agreement, provided that such Common Stock Equivalents referred to in this clause (iii) have not been amended since the date of this Agreement to increase the number of such securities or Common Stock underlying such securities or to decrease the exercise price, exchange price or conversion price of such securities. The Investor shall be entitled to seek injunctive relief against the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages, without the necessity of showing economic loss and without any bond or other security being required. “Common Stock Equivalents” means any securities of the Company or its Subsidiaries which entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, for Common Stock, offered and sold in a privately negotiated transaction to vendors, customers, strategic partners or potential strategic partners or other investors conducted in a manner so as not to be integrated with the offering of Common Stock hereby and (iv) Common Stock in connection with any acquisition, strategic investment or other similar transaction (including any joint venture, strategic alliance or partnership). Any certificate signed by an officer of the Company and delivered to the Sales Agents or to counsel for the Sales Agents pursuant to or in connection with this Agreement shall be deemed to be a representation and warranty by the Company, as applicable, to the Sales Agents as to the matters set forth therein.

Subsequent Equity Issuances. From and after the date of this Agreement until the date that is thirty (30) days after the date of this Agreement (irrespective of any earlier termination of this Agreement), provided the Initial Purchase has occurred, neither Neither the Company nor any Subsidiary shall will offer, sell, issue, enter into any agreement contract to sell, contract to issue or announce the issuance otherwise dispose of, directly or proposed issuance of indirectly, any other shares of Common Stock or securities exercisable, exchangeable or convertible into Common Stock Equivalents (or a combination of units thereof), “Common Stock Equivalents”) (other than the Placement Shares) during the period beginning on the fifth (5th) Trading Day immediately prior to the date on which any Sales Notice is delivered to the Agent hereunder and ending on the third (3rd) Trading Day immediately following the final Settlement Date with respect to Placement Shares sold pursuant to such Placement Notice without the written consent of the Agent; provided, however, that such restrictions will not apply in connection with the Company’s issuance or sale of (i) Common Stock, options to purchase Common Stock or Common Stock issuable upon the exercise of options, pursuant to any stock option, or benefits or incentive plan, stock ownership plan or dividend reinvestment plan (but not Common Stock subject to a waiver to exceed plan limits in its dividend reinvestment plan) of the Company whether now in effect or hereafter implemented; (ii) Common Stock issuable upon conversion of securities or the exercise of warrants, options or other equity incentive awards that are issued rights in effect or outstanding, and outstanding on the date of this Agreement and granted to employees, officers or directors of disclosed in filings by the Company pursuant available on EXXXX or otherwise in writing to any equity incentive plan duly adopted for such purpose, by the Board of Directors or a majority of the members of a committee of directors established for such purpose, provided that such options and other equity incentive awards referred to in this clause (i) have not been amended since the date of this Agreement to increase the number of such securities or Common Stock underlying such securities or to decrease the exercise price, exchange price or conversion price of such securitiesAgent, (ii)(Aiii) any Securities issued to the Investor pursuant to this Agreement, (B) shares of Common Stock, Common Stock Equivalents or other securities to the Investor pursuant to any other existing or future contract, agreement or arrangement between the Company and the Investor, or (C) shares of Common Stock, Common Stock Equivalents or other securities upon the exercise, exchange or conversion of any shares of Common Stock, Common Stock Equivalents or other securities held by the Investor at any time, or (iii) any securities issued upon the exercise or exchange of or conversion of any Common Stock Equivalents issued and outstanding on the date of this Agreement, provided that such Common Stock Equivalents referred to in this clause (iii) have not been amended since the date of this Agreement to increase the number of such securities or Common Stock underlying such securities or to decrease the exercise price, exchange price or conversion price of such securities. The Investor shall be entitled to seek injunctive relief against the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages, without the necessity of showing economic loss and without any bond or other security being required. “Common Stock Equivalents” means any securities of the Company or its Subsidiaries which entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, for Common Stock, offered and sold in a privately negotiated transaction to vendors, customers, strategic partners or potential strategic partners or other investors conducted in a manner so as not to be integrated with the offering of Common Stock hereby and (iv) Common Stock in connection with any acquisition, strategic investment or other similar transaction (including any joint venture, strategic alliance or partnership).

Subsequent Equity Issuances. From and after (i) Without the date prior written consent of this Agreement until the date that is thirty (30) days after the date of this Agreement (irrespective of any earlier termination of this Agreement), provided the Initial Purchase has occurred, Manager neither the Company nor any Subsidiary shall will offer, sell, issue, enter into any agreement contract to sell, contract to issue or announce otherwise dispose of, directly or indirectly, any other shares of Common Stock or any Common Stock Equivalents (other than the issuance Shares) (i) during the sixty (60) days from the Execution Time (the “Lock-Up Period”) and (ii) during the term of this Agreement while any Sales Notice is outstanding and unfulfilled; provided, however, that the Company may issue and sell Common Stock pursuant to any employee stock option plan, stock ownership plan or proposed issuance dividend reinvestment plan of the Company in effect at the Execution Time and, with as much notice as reasonably practicable, the Company may issue Common Stock issuable upon the conversion or exercise of Common Stock Equivalents outstanding at the Execution Time. The Company also agrees that during the periods identified in clauses (i) and (ii) above, without the prior written consent of the Manager, the Company will not file any registration statement, preliminary prospectus or prospectus, or any amendment or supplement thereto, under the Securities Act for any such transaction or which registers, or offers for sale, Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, except for a registration statement on Form S-8 relating to employee benefit plans. (ii) Notwithstanding anything to the contrary contained this Agreement, the Company will cause each of Axxx Xxxxx, its Executive Director, and Sxxxxx Xxxxx, its Chairman, President and Chief Executive Officer, and its other executive officers and directors to furnish to the Manager, prior to the Execution Time, a letter, substantially in the form of Annex II hereto, pursuant to which each such person shall agree, among other things, for the Lock-Up Period not to directly or indirectly offer, sell, assign, transfer, pledge, contract to sell, or otherwise dispose of, any shares of Common Stock or Common Stock Equivalents (or a combination of units thereof), other than the issuance of (i) Common Stock issuable upon the exercise of options or other equity incentive awards that are issued and outstanding on the date of this Agreement and granted to employees, officers or directors of the Company pursuant to any equity incentive plan duly adopted for such purpose, by the Board of Directors or a majority of the members of a committee of directors established for such purpose, provided that such options and other equity incentive awards referred to in this clause (i) have not been amended since the date of this Agreement to increase the number of such securities or Common Stock underlying such securities or to decrease the exercise price, exchange price or conversion price of such securities, (ii)(A) any Securities issued to the Investor pursuant to this Agreement, (B) shares of Common Stock, Common Stock Equivalents or other securities to the Investor pursuant to any other existing or future contract, agreement or arrangement between the Company and the Investor, or (C) shares of Common Stock, Common Stock Equivalents or other securities upon the exercise, exchange or conversion of any shares of Common Stock, Common Stock Equivalents or other securities held by the Investor at any time, or (iii) any securities issued upon the exercise or exchange of or conversion of any Common Stock Equivalents issued and outstanding on the date of this Agreement, provided that such Common Stock Equivalents referred to in this clause (iii) have not been amended since the date of this Agreement to increase the number of such securities or Common Stock underlying such securities or to decrease the exercise price, exchange price or conversion price of such securities. The Investor shall be entitled to seek injunctive relief against the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages, without the necessity of showing economic loss and without any bond or other security being required. “Common Stock Equivalents” means any securities of the Company or its Subsidiaries which entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable forfor Common Stock, not to engage in any swap or other agreement or arrangement that transfers, in whole or in part, directly or indirectly, the economic risk of ownership of Common Stock or any such securities and not to engage in any short selling of any Common Stock or any such securities, during the Lock-Up Period, without the prior written consent of the Manager. The Company hereby further agrees that (i) if it issues an earnings release or material news, or otherwise entitles if a material event relating to the holder thereof Company occurs, during the last seventeen (17) days of the Lock-Up Period, or (ii) if prior to receivethe expiration of the Lock-Up Period, Common Stockthe Company announces that it will release earnings results during the sixteen (16)-day period beginning on the last day of the Lock-Up Period, the restrictions imposed by this paragraph (h) or the letter shall continue to apply until the expiration of the eighteen (18)-day period beginning on the date of issuance of the earnings release or the occurrence of the material news or material event.