Common use of Additional Issuance of Securities Clause in Contracts

Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the ninety (90) day anniversary of the Closing Date (provided that such period shall be extended by the number of days during such period and any extension thereof contemplated by this proviso on which the Registration Statement is not effective or any prospectus contained therein is not available for use) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant or any option to purchase or other disposition of) any of their respective equity or equity equivalent securities, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time and under any circumstances convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, capital stock and other securities of the Company (including, without limitation, any securities of the Company or any Subsidiary which entitle the holder thereof to acquire Common Stock at any time, including without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock or other securities that entitle the holder to receive, directly or indirectly, Common Stock) (collectively with such capital stock or other securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(j) shall not apply in respect of the issuance of (A) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Share Plan (as defined below), provided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (A) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately prior to the date hereof and (2) such options are not amended to increase the number of shares issuable thereunder or to lower the exercise price thereof or to otherwise materially change the terms or conditions thereof in any manner that adversely affects any of the Buyers, (B) shares of Common Stock issued upon the conversion or exercise of Equivalents issued prior to the date hereof, provided that such Equivalents have not been amended since the date of this Agreement to increase the number of shares issuable thereunder or to lower the exercise or conversion price thereof or otherwise materially change the terms or conditions thereof in any manner that adversely affects any of the Buyers, (C) the Warrant Shares and (D) unregistered shares of Common Stock to a Person who enters into a

Additional Issuance of Securities. (a) The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the ninety sixtieth (9060th) day anniversary of after the Closing Date (provided that such period shall be extended by the number of days during such period and any extension thereof contemplated by this proviso on which the Registration Statement is not effective or any prospectus contained therein is not available for use) date hereof (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant or any option to purchase or other disposition of) any of their respective equity or equity equivalent securities, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time and under any circumstances convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, capital stock and other securities of the Company (including, without limitation, any securities of the Company or any Subsidiary which entitle the holder thereof to acquire Common Stock at any time, including without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock or other securities that entitle the holder to receive, directly or indirectly, Common Stock) (collectively with such capital stock or other securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is being referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(j4.13(a) shall not apply in respect of the issuance of (A) unregistered shares of Common Stock or standard options to purchase Common Stock issued to directors, officers officers, employees or employees consultants of the Company in connection with their capacity service as such directors or officers of the Company, their employment by the Company or their retention as consultants by the Company pursuant to an Approved Share Plan equity compensation program or other contract or arrangement approved by the board of directors of the Company (as defined belowor the compensation committee of the board of directors of the Company), provided that (1) all such issuances of shares of Common Stock (taking into account the including, shares of Common Stock issuable upon exercise of such standard options) after the date hereof pursuant to this clause (A) that are not described in clause (B) below do not, in the aggregate, exceed more than 105% of the Common Stock issued and outstanding immediately prior to the date hereof and (2) as adjusted for any stock dividend, stock split, stock combination or other similar transaction occurring after the date hereof), provided further that all such options are not amended to increase the number of shares issuable thereunder issuances must be for consideration per share or to lower the have an exercise price thereof (as the case may be) greater than or equal to otherwise materially change the terms or conditions thereof in any manner that adversely affects any fair market value of the Buyers, Common Stock on the date of such issuance; (B) shares of Common Stock issued upon the conversion or exercise of Equivalents issued prior to the date hereof, provided that such Equivalents have not been amended since the date of this Agreement to increase the number of shares issuable thereunder or to lower the exercise or conversion price thereof or otherwise materially change the terms or conditions thereof in any manner that adversely affects any of the Buyers, Purchasers; (C) the Warrant Shares and shares of Preferred Stock issuable pursuant to Section 8 of the Certificate of Designation; (D) the Underlying Shares; (E) the Warrant Shares; (F) unregistered shares of Common Stock issued in connection with strategic transactions (the primary purpose of which is not to raise capital, and which are approved in good faith by the board of directors of the Company), provided that (i) any such issuance after the date hereof pursuant to this clause (F) shall only be to a Person who enters into athat is, itself or through its subsidiaries, an operating company in a business synergistic with the business of the Company; (ii) all such issuances after the date hereof pursuant to this clause (F) do not, in the aggregate, exceed more than 20% of the shares of Common Stock issued and outstanding immediately prior to the date hereof (as adjusted for any stock dividend, stock split, stock combination or other similar transaction occurring after the date hereof) and (iii) all such issuances after the date hereof pursuant to this clause (F) must have a price per share greater than or equal to the fair market value of the Common Stock on the date of such issuance.

Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the ninety earlier of (90i) day anniversary of one hundred sixty five (165) days after the Closing Date or (provided that such period shall ii) sixty (60) days after the Effective Date of the initial Registration Statement required to be extended filed by the number Company pursuant to Section 2(a) of days during such period and any extension thereof contemplated by this proviso on which the Registration Statement is not effective or any prospectus contained therein is not available for use) Rights Agreement which covers all of the securities required to be covered thereunder (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant or any option to purchase or other disposition of) any of their respective equity or equity equivalent securities, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time and under any circumstances convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, capital stock and other securities of the Company (including, without limitation, any securities of the Company or any Subsidiary of its subsidiaries which entitle the holder thereof to acquire Common Stock at any time, including without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock or other securities that entitle the holder to receive, directly or indirectly, Common Stock) (collectively with such capital stock or other securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is being referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(j) shall not apply in respect of the issuance of (A) shares of Common Stock or standard options to purchase Common Stock issued to directors, officers officers, employees or employees consultants of the Company in connection with their capacity service as such directors or officers of the Company, their employment by the Company or their retention as consultants by the Company pursuant to an Approved Share Plan equity compensation program or other contract or arrangement approved by the Board of Directors of the Company (as defined belowor the compensation committee of the Board of Directors of the Company), provided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (A) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately prior to the date hereof and (2) such options are not amended to increase the number of shares issuable thereunder or to lower the exercise price thereof or to otherwise materially change the terms or conditions thereof in any manner that adversely affects any of the Buyershereof, (B) shares of Common Stock or standard warrants (including so-called xxxxx warrants) to purchase Common Stock in connection with strategic alliances, acquisitions, mergers, strategic partnerships, joint ventures, vendor and supplier arrangements and as equity kickers in lease and financing transactions, the primary purpose of which is not to raise capital, and which are approved in good faith by the Company’s Board of Directors, provided that all such issuances after the date hereof pursuant to this clause (B) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately prior to the date hereof, (C) shares issued upon the conversion or exercise of Equivalents issued prior to the date hereof, provided that such Equivalents have not been amended since the date of this Agreement to increase the number of shares issuable thereunder or to lower the exercise or conversion price thereof or otherwise materially change the terms or conditions thereof in any manner that adversely affects any of the Buyers, (CD) shares issued or issuable by reason of a dividend, stock split or other distribution on Common Stock or (E) the Warrant Shares and (Deach of the foregoing in clauses (A) unregistered shares of Common Stock to a Person who enters into athrough (E), collectively the “Excluded Securities”).

Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the ninety (90) day anniversary days after the Effective Date of the Closing Date (provided that such period shall initial Registration Statement required to be extended filed by the number Company pursuant to Section 2(a) of days during such period and any extension thereof contemplated by this proviso on which the Registration Statement is not effective or any prospectus contained therein is not available for use) Rights Agreement which covers all of the securities required to be covered thereunder (the “Restricted Period”), neither the Company nor any of its the Subsidiaries shall directly or indirectly issue, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant or any option to purchase or other disposition of) any of their respective equity or equity equivalent securities, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time and under any circumstances convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, capital stock and other securities of the Company (including, without limitation, any securities of the Company or any Subsidiary which entitle the holder thereof to acquire Common Stock at any time, including without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock or other securities that entitle the holder to receive, directly or indirectly, Common Stock) (collectively with such capital stock or other securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is being referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the issuance of (A) shares of Common Stock or standard options to purchase Common Stock issued to directors, officers officers, employees or employees consultants of the Company in connection with their capacity service as such directors or officers of the Company, their employment by the Company or their retention as consultants by the Company pursuant to an Approved Share Plan equity compensation program or other contract or arrangement approved by the board of directors of the Company (as defined belowor the compensation committee of the board of directors of the Company), provided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (A) do not, in the aggregate, exceed more than 105% of the Common Stock issued and outstanding immediately prior to the date hereof and (2) such options are not amended to increase the number of shares issuable thereunder or to lower the exercise price thereof or to otherwise materially change the terms or conditions thereof in any manner that adversely affects any of the Buyershereof, (B) shares of Common Stock issued upon the conversion or exercise of Equivalents issued prior to the date hereof, provided that such Equivalents have not been amended since the date of this Agreement to increase the number of shares issuable thereunder or to lower the exercise or conversion price thereof or otherwise materially change the terms or conditions thereof in any manner that adversely affects any of the Buyers, (C) the Conversion Shares, (D) the Warrant Shares and (DE) unregistered shares of Common Stock and warrants to purchase shares of Common Stock in connection with strategic alliances, acquisitions, mergers, and strategic partnerships, the primary purpose of which is not to raise capital, and which are approved in good faith by the Company’s Board of Directors, provided that all such issuances after the date hereof pursuant to this clause (E) do not, in the aggregate (determined on a Person who enters into afully-diluted basis), exceed more than 10% of the shares of Common Stock issued and outstanding immediately prior to the date hereof (each of the foregoing in clauses (A) through (E), collectively the “Excluded Securities”).

Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the ninety (90) day anniversary days after the Effective Date (as defined in the Registration Rights Agreement) of the Closing Date (provided that such period shall initial registration statement required to be extended filed by the number Company pursuant the terms of days during such period and any extension thereof contemplated by this proviso on which the Registration Statement is not effective or any prospectus contained therein is not available for use) Rights Agreement which covers all of the securities required to be covered thereunder (the “Restricted Period”), neither the Company nor any of its the Subsidiaries shall directly or indirectly issue, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant or any option to purchase or other disposition of) any of their respective equity or equity equivalent securities, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time and under any circumstances convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, capital stock and other securities of the Company (including, without limitation, any securities of the Company or any Subsidiary which entitle the holder thereof to acquire Common Stock at any time, including without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock or other securities that entitle the holder to receive, directly or indirectly, Common Stock) (collectively with such capital stock or other securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is being referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(j5(h) shall not apply in respect of the issuance of (A) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Share Plan (as defined below), provided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (A) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately prior to the date hereof and (2) such options are not amended to increase the number of shares issuable thereunder or to lower the exercise price thereof or to otherwise materially change the terms or conditions thereof in any manner that adversely affects any of the Buyers, (B) shares of Common Stock issued upon the conversion or exercise of Equivalents issued prior to the date hereof, provided that such Equivalents have not been amended since the date Excluded Securities. For purposes of this Agreement to increase Agreement, the number of shares issuable thereunder or to lower following terms shall have the exercise or conversion price thereof or otherwise materially change the terms or conditions thereof in any manner that adversely affects any of the Buyers, (C) the Warrant Shares and (D) unregistered shares of Common Stock to a Person who enters into afollowing meanings: