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DILUYEN
ATM
Aspire Capital Fund, LLC
Form S-3 / Registration Statement
WHEREAS , the Board believes it is in the best interests of the Company to enter into a Common Stock Purchase Agreement (the “ Purchase Agreement ”) by and between the Company and Aspire Capital Fund, LLC (“ Aspire ”), providing for the purchase by Aspire of up to Thirty Million Dollars ($30,000,000) (the “ Available Amount ”) of the Company’s common stock, par value $0.001 per share (“ Common Stock ”);
Offering of Securities
NOW THEREFORE, BE IT, RESOLVED , that the issuance of 250,000 shares of Common Stock as a commitment fee (the “ Commitment Shares ”) pursuant to the Purchase Agreement be, and hereby is, authorized and approved;
RESOLVED FURTHER , that the issuance and sale of up to Thirty Million Dollars ($30,000,000) of Common Stock, to be made to Aspire pursuant to the terms and conditions of the Purchase Agreement (the “ Offering ”) during the Commitment Period (as hereinafter defined) be, and hereby is, authorized and approved;
RESOLVED FURTHER , that the issuance at any time and from time to time by the Company of up to $30,000,000 of Common Stock (the “ Purchase Shares ,” and together with the Commitment Shares, the “ Securities ”) in the Offering in accordance with the terms of the Purchase Agreement for the period commencing on the effective date of the Purchase Agreement and expiring on the earliest to occur of (i) the date on which Aspire has purchased the Purchase Securities, (ii) the date the Purchase Agreement is terminated in accordance with its terms and (iii) the date Thirty-Six (36) months after the effective date of the Registration Statement (as hereinafter defined) that registered the Securities (the “ Commitment Period ”) be, and hereby is, authorized and approved;
RESOLVED FURTHER , that the Company does hereby initially reserve an aggregate of shares of Common Stock for issuance as Purchase Shares under the Purchase Agreement in an amount up to $30,000,000, with such number of shares initially being set at 16,600,000, subject to increase from time to time by the Pricing Committee (as defined below);
RESOLVED FURTHER , that upon the issuance of the Commitment Shares pursuant to the terms and conditions of the Purchase Agreement, the Commitment Shares will be validly issued, fully paid and nonassessable;
RESOLVED FURTHER, that, upon the issuance and sale of the Purchase Shares in the Offering in accordance with the terms of the Purchase Agreement, the Purchase Shares will be validly issued, fully paid and nonassessable;