Common use of Exempt Issuance Clause in Contracts

Exempt Issuance. For the purposes of this Section 3, “Exempt Issuance” shall mean the issuance of (A) shares of Common Stock or shares of the Company’s Series A Convertible Preferred Stock, par value $0.0001 per share (the “Series A Preferred Stock”) issued as dividends with respect to the Series A Preferred Stock, (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), and in accordance with the terms thereof on such date, (C) shares of Common Stock or Common Stock Equivalents (or Common Stock issued upon exercise, exchange or 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 a firm commitment underwritten public offering, the terms of which are approved by the Company’s Board of Directors (including a majority of the 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 (including a majority of the independent directors serving on the Board or (G) Series A Preferred Stock issued on or prior to December 31, 2009.

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 this Section 3the Warrants, “Exempt Issuance” shall mean means the issuance of (Aa) shares of Common Stock Stock, Convertible Securities, restricted stock units, Options or shares common stock equivalents to employees, consultants officers or directors of the Company’s Series A Convertible Preferred StockCompany pursuant to any existing or future stock option, par value $0.0001 per share (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 “Series A Preferred Stock”) issued as dividends with respect to non-employee members of the Series A Preferred StockBoard or a majority of the members of a committee of non-employee directors established for such purpose, (B) shares and the issuance of Common Stock issued in respect of such Convertible Securities, restricted stock units, Options or issuable common stock equivalents, (b) securities (including Common Stock and common stock equivalents) upon the exercise, conversion or exercise exchange of securities (including Convertible Securities and Options, and including the issuance of Common Stock in full satisfaction of any convertible debt interest or equity 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 warrants outstanding as to decrease the exercise price, exchange price or conversion price of such securities, (c) securities issued (including Options and Convertible Securities) or the Secondary Closing Date (filing of a registration statement by the Company in connection with or as of the Initial Closing Date if there is no Secondary Closing Date), and in accordance with any Shareholder Rights Agreement as may be entered into from time to time by the terms thereof on such dateCompany to implement a so-called poison pill as the same may be amended, supplemented or modified, (Cd) shares 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 or Common Stock Equivalents (or Common Stock issued upon exercisethe exercise of such securities, exchange or conversion of Common Stock Equivalents) issued if applicable), in connection with any stock-based compensation plans of the Company each case, approved by the stockholders Board and not primarily for the purpose of the Company and raising capital, as determined in good faith by the Board, (De) shares of Common Stock issued pursuant to a firm commitment underwritten public offering, the terms of which are approved by the Company’s Board of Directors (including a majority of the independent directors serving on the Board), (E) securities or rights to acquire securities issued to financial institutions in connection with commercial credit arrangementsvendors, equipment financings, service agreements or similar transactions approved by the Company’s Board of Directors consultants 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 CompanyCompany as compensation or to settle bona fide trade liabilities, the terms of which are approved by the Board and (including f) securities issued in a majority of the independent directors serving on the Board transaction described in Section 8(a) or (G8(b) Series A Preferred Stock issued on or prior to December 31, 2009above.

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 this Section 3the Warrants, “Exempt Issuance” shall mean means the issuance of (Aa) 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 shares common stock equivalents, (b) the Warrants, (c) 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 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, (d) securities issued to TriplePoint Capital LLC (“TriplePoint”) in connection with the amendment of the Company’s Series A Convertible Preferred Stock, par value $0.0001 per share agreements with TriplePoint in effect as of the date of this Agreement (and the “Series A Preferred Stock”) issued as dividends with respect to the Series A Preferred Stock, (B) shares issuance of Common Stock issued or issuable upon conversion or the 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 Datesuch securities), (e) 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 terms thereof on such dateCompany to implement a so-called poison pill as the same may be amended, supplemented or modified, (Cf) shares 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 or Common Stock Equivalents (or Common Stock issued upon exercisethe exercise of such securities, exchange or conversion of Common Stock Equivalents) issued if applicable), in connection with any stock-based compensation plans of the Company each case, approved by the stockholders Board and not primarily for the purpose of the Company and raising capital, as determined in good faith by the Board, (Dg) shares of Common Stock issued pursuant to a firm commitment underwritten public offering, the terms of which are approved by the Company’s Board of Directors (including a majority of the independent directors serving on the Board), (E) securities or rights to acquire securities issued to financial institutions in connection with commercial credit arrangementsvendors, equipment financings, service agreements or similar transactions approved by the Company’s Board of Directors consultants 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 CompanyCompany as compensation or to settle bona fide trade liabilities, (h) securities with an aggregate consideration payable to the terms Company of which are approved by the Board less than $2,000,000 in any twelve month period and (including i) securities issued in a majority of the independent directors serving on the Board or (Gtransaction described in Section 8(a) Series A Preferred Stock issued on or prior to December 31, 2009above.

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 this Section 3the Warrants, “Exempt Issuance” shall mean means the issuance of (Aa) shares of Common Stock Stock, Convertible Securities, restricted stock units, Options or shares common stock equivalents to employees, consultants officers or directors of the Company’s Series A Convertible Preferred StockCompany pursuant to any existing or future stock option, par value $0.0001 per share (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 “Series A Preferred Stock”) issued as dividends with respect to non-employee members of the Series A Preferred StockBoard or a majority of the members of a committee of non-employee directors established for such purpose, (B) shares and the issuance of Common Stock issued in respect of such Convertible Securities, restricted stock units, Options or issuable common stock equivalents, (b) securities (including Common Stock and common stock equivalents) upon the exercise, conversion or exercise exchange of securities (including Convertible Securities and Options, and including the issuance of Common Stock in full satisfaction of any convertible debt interest or equity 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 warrants outstanding as to decrease the exercise price, exchange price or conversion price of such securities, (c) securities issued (including Options and Convertible Securities) or the Secondary Closing Date (filing of a registration statement by the Company in connection with or as of the Initial Closing Date if there is no Secondary Closing Date), and in accordance with any Shareholder Rights Agreement as may be entered into from time to time by the terms thereof on such dateCompany to implement a so-called poison pill as the same may be amended, supplemented or modified, (Cd) shares 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 or Common Stock Equivalents (or Common Stock issued upon exercisethe exercise of such securities, exchange or conversion of Common Stock Equivalents) issued if applicable), in connection with any stock-based compensation plans of the Company each case, approved by the stockholders Board and not primarily for the purpose of the Company and raising capital, as determined in good faith by the Board, (De) shares of Common Stock issued pursuant to a firm commitment underwritten public offering, the terms of which are approved by the Company’s Board of Directors (including a majority of the independent directors serving on the Board), (E) securities or rights to acquire securities issued to financial institutions in connection with commercial credit arrangementsvendors, equipment financings, service agreements or similar transactions approved by the Company’s Board of Directors consultants 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 CompanyCompany as compensation or to settle bona fide trade liabilities, (f) securities with an aggregate consideration payable to the terms Company of which are approved by the Board less than $500,000 in any twelve month period and (including g) securities issued in a majority of the independent directors serving on the Board or (Gtransaction described in Section 8(a) Series A Preferred Stock issued on or prior to December 31, 2009above.

Exempt Issuance. For the purposes of this Section 3Warrant, “Exempt Issuance” shall mean means the issuance of (Aa) shares of Common Stock, options or other equity-based awards to employees, officers, consultants 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 or a majority of the members of a committee of non-employee directors established for such purpose, (b) securities upon the exercise or exchange of or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date hereof, provided that such securities have not been amended since date hereof to increase the number of such securities or shares to decrease the exercise price, exchange price or conversion price of such securities, (c) securities issued pursuant to acquisitions or strategic transactions (including without limitation, sponsored research, collaboration, technology license, development, distribution, marketing, or similar 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 (c), 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, (d) securities upon the exercise of the Company’s Series A Convertible Preferred Stock, par value $0.0001 per share B Warrants issued on the Original Issue Date (the “Series A Preferred Stock”) issued as dividends with respect to the Series A Preferred Stock, (B) 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 upon conversion to parties providing equipment leases, real property leases, credit lines or exercise of any convertible similar transactions pursuant to debt financing 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), and in accordance with the terms thereof on such date, (C) shares of Common Stock or Common Stock Equivalents (or Common Stock issued upon exercise, exchange or conversion of Common Stock Equivalents) issued in connection with any stock-based compensation plans of the Company commercial arrangements approved by the stockholders of the Company and the Board, (D) shares of Common Stock issued pursuant to a firm commitment underwritten public offering, the terms of which are approved by the Company’s Board of Directors (including a majority of the independent disinterested 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, and (f) securities issued in transactions that are included within the terms definition of which are approved an “Exempt Issuance” by the Board (including a majority approval of the independent directors serving on the Board or (G) Series A Preferred Stock issued on or prior to December 31, 2009Required Holders.

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 this Section 3the Warrants, “Exempt Issuance” shall mean means the issuance of (Aa) shares of Common Stock Stock, Convertible Securities, restricted stock units, Options or shares common stock equivalents to employees, consultants officers or directors of the Company’s Series A Convertible Preferred StockCompany pursuant to any existing or future stock option, par value $0.0001 per share (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 “Series A Preferred Stock”) issued as dividends with respect to non-employee members of the Series A Preferred StockBoard or a majority of the members of a committee of non-employee directors established for such purpose, (B) shares and the issuance of Common Stock issued in respect of such Convertible Securities, restricted stock units, Options or issuable common stock equivalents, (b) securities (including Common Stock and common stock equivalents) upon the exercise, conversion or exercise exchange of securities (including Convertible Securities and Options, and including the issuance of Common Stock in full satisfaction of any convertible debt interest or equity 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 warrants outstanding as to decrease the exercise price, exchange price or conversion price of such securities, (c) securities issued (including Options and Convertible Securities) or the Secondary Closing Date (filing of a registration statement by the Company in connection with or as of the Initial Closing Date if there is no Secondary Closing Date), and in accordance with any Shareholder Rights Agreement as may be entered into from time to time by the terms thereof on such dateCompany to implement a so-called poison pill as the same may be amended, supplemented or modified, (Cd) shares 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 or Common Stock Equivalents (or Common Stock issued upon exercisethe exercise of such securities, exchange or conversion of Common Stock Equivalents) issued if applicable), in connection with any stock-based compensation plans of the Company each case, approved by the stockholders Board and not primarily for the purpose of the Company and raising capital, as determined in good faith by the Board, (De) shares of Common Stock issued pursuant to a firm commitment underwritten public offering, the terms of which are approved by the Company’s Board of Directors (including a majority of the independent directors serving on the Board), (E) securities or rights to acquire securities issued to financial institutions in connection with commercial credit arrangementsvendors, equipment financings, service agreements or similar transactions approved by the Company’s Board of Directors consultants 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 CompanyCompany as compensation or to settle bona fide trade liabilities, not to exceed an aggregate of $500,000 in any twelve month period, valued based on the terms of which are approved by the Board (including a majority Market Price of the independent directors serving securities on the Board 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 (Gg) Series A Preferred Stock securities issued on or prior to December 31, 2009in a transaction described in Section 8(a) above.

Exempt Issuance. Notwithstanding the foregoing, no adjustment will be made under this paragraph (e) in respect of an Exempt Issuance. For the purposes of this Section 3Warrant, “Exempt Issuance” shall mean means the issuance of (Aa) shares of Common Stock, Common Stock Equivalents, restricted stock units or shares other Options to employees, consultants officers or directors of the Company’s Series A Convertible Preferred StockCompany pursuant to any existing or future stock option, par value $0.0001 per share (restricted stock, stock purchase or other equity compensation plan duly adopted for such purpose, by a majority of the “Series A Preferred Stock”) issued as dividends with respect to non-employee members of the Series A Preferred StockBoard of Directors or a majority of the members of a committee of non-employee directors established for such purpose, (B) shares and the issuance of Common Stock issued in respect of such Common Stock Equivalents, restricted stock units or issuable other Options, (b) securities (including Common Stock and Common Stock Equivalents) upon the exercise, conversion or exercise exchange of any convertible debt or equity securities (including Convertible Securities and Options) issued and outstanding on the date hereof, including the Warrants, provided that such securities have not been amended since date hereof to increase the number of such securities or warrants outstanding as to decrease the exercise price, exchange price or conversion price of such securities, (c) securities (including Options) or the Secondary Closing Date (or as filing of a registration statement by the Initial Closing Date if there is no Secondary Closing Date), Company pursuant to and in accordance with the terms thereof on such date, (C) shares of Common Stock or Common Stock Equivalents (or Common Stock issued upon exercise, exchange or conversion of Common Stock Equivalents) issued in connection with any stock-based compensation plans of the Company approved by the stockholders of Shareholder Rights Agreement, dated June 23, 2009, between the Company and the BoardAmerican Stock Transfer & Trust Company LLC, as amended, supplemented or modified, (Dd) shares of Common Stock securities issued pursuant to a firm commitment underwritten public offering, the terms of which are 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 (or to the equityholders of a Person) that the Company’s Board of Directors (including determines in good faith is, itself or through its subsidiaries, an operating company or an owner of an asset in a majority business synergistic with the business of the independent directors serving on Company and shall provide to the BoardCompany additional benefits in addition to the investment of funds, but shall not, for the purposes of this clause (d), (E) include a transaction in which the Company is issuing 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 primarily for 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 raising capital or to consultants an entity whose primary business is investing in securities, and (e) .the issuance of securities in a transaction described in Section 3(a) or other service providers of the Company, the terms of which are approved by the Board (including a majority of the independent directors serving on the Board or (G3(b) Series A Preferred Stock issued on or prior to December 31, 2009above.

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 this Section 3the Warrants, “Exempt Issuance” shall mean means the issuance of (Aa) shares of Common Stock Stock, Convertible Securities, restricted stock units, Options or shares common stock equivalents to employees, consultants officers or directors of the Company’s Series A Convertible Preferred StockCompany pursuant to any existing or future stock option, par value $0.0001 per share (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 “Series A Preferred Stock”) issued as dividends with respect to non-employee members of the Series A Preferred StockBoard or a majority of the members of a committee of non-employee directors established for such purpose, (B) shares and the issuance of Common Stock issued in respect of such Convertible Securities, restricted stock units, Options or issuable common stock equivalents, (b) the Warrants, (c) securities (including Common Stock and common stock equivalents) upon the exercise, conversion or exercise exchange of securities (including Convertible Securities and Options, and including the issuance of Common Stock in full satisfaction of any convertible debt interest or equity 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 warrants outstanding as to decrease the exercise price, exchange price or conversion price of such securities, (d) securities issued (including Options and Convertible Securities) or the Secondary Closing Date (filing of a registration statement by the Company in connection with or as of the Initial Closing Date if there is no Secondary Closing Date), and in accordance with any Shareholder Rights Agreement as may be entered into from time to time by the terms thereof on such dateCompany to implement a so-called poison pill as the same may be amended, supplemented or modified, (Ce) shares 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 or Common Stock Equivalents (or Common Stock issued upon exercisethe exercise of such securities, exchange or conversion of Common Stock Equivalents) issued if applicable), in connection with any stock-based compensation plans of the Company each case, approved by the stockholders Board and not primarily for the purpose of the Company and raising capital, as determined in good faith by the Board, (Df) shares of Common Stock issued pursuant to a firm commitment underwritten public offering, the terms of which are approved by the Company’s Board of Directors (including a majority of the independent directors serving on the Board), (E) securities or rights to acquire securities issued to financial institutions in connection with commercial credit arrangementsvendors, equipment financings, service agreements or similar transactions approved by the Company’s Board of Directors consultants 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 CompanyCompany as compensation or to settle bona fide trade liabilities, (g) securities with an aggregate consideration payable to the terms Company of which are approved by the Board less than $2,000,000 in any twelve month period and (including h) securities issued in a majority of the independent directors serving on the Board or (Gtransaction described in Section 8(a) Series A Preferred Stock issued on or prior to December 31, 2009above.