Excluded Securities

Excluded Securities. Any Common Stock issued or issuable: (i) in connection with any Approved Stock Plan; (ii) upon the exercise of the Warrants; (iii) in connection with any strategic acquisition or transaction by the Company, whether through an acquisition of stock or a merger of any business, assets or technologies the primary purpose of which is not to raise equity capital; (iv) upon warrants (exercisable for not more than 500,000 shares in the aggregate) issued to a bank or other financial institution in... connection with a bona fide non-convertible loan, equipment leasing or indebtedness transaction and (v) upon exercise of any Options or Convertible Securities which are outstanding on the day immediately preceding the Subscription Date, provided that the terms of such Options or Convertible Securities are not amended, modified or changed on or after the Subscription Date. View More

Excluded Securities. Shares of Common Stock issued pursuant to (a) the exercise of stock options, (b) the issuance of restricted stock upon the vesting of restricted stock awards and stock purchase rights under the Company's equity incentive plans and employee stock purchase plan, (c) the exercise of warrants outstanding prior to the Issuance Date, (d) shares of Common Stock issued pursuant to the existing committed equity financing facilities entered into with Kingsbridge Capital Limited, (e) the issuance of... Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (and the issuance of Common Stock pursuant to the terms of such securities convertible into or exercisable or exchangeable for Common Stock) in connection with strategic alliances involving the Company and other entities, including without limitation, joint venture, licensing and collaboration arrangements and (f) the issuance of shares of Common Stock or securities convertible into, or exercisable or exchangeable for shares of Common Stock, to consultants or other providers of services or products to the Company. View More

Excluded Securities. Any Common Stock issued or issuable: (I) (i) in connection with any Approved Stock Plan; (ii) upon exercise of the SPA Warrants; (iii) in connection with any share split, dividend, recapitalization or similar transaction by the Company for which adjustment is made pursuant to Section 2(b); and (iv) upon exercise of any Options or Convertible Securities which are outstanding on the day immediately preceding the Subscription Date, provided that the terms of such Options or Convertible Securities... are not amended, modified or changed on or after the Subscription Date; (II) pursuant to an "at the money (ATM)" or "dribble out" program entered into by the Company no later than sixty (60) days following the Subscription Date, provided that the Company has complied with its obligations under Section 4.11 and Section 4.12 of the Securities Purchase Agreement with respect to such program; (III) pursuant to warrants issued on a one-time basis to the lenders in connections any refinancing or restructuring of existing secured bank financed indebtedness of the Company; and (IV) pursuant to that certain Common Share Agreement, dated October 21, 2008, by and between the Company and Azimuth Opportunity Ltd., provided that such agreement has not been amended since the Subscription Date View More

Excluded Securities. Shall have the meaning ascribed to it in the Securities Purchase Agreement.

Excluded Securities. The issuance of (a) shares of Common Stock or options to employees, officers or directors of the Company in their capacity as such pursuant to any stock or option plan or employment agreement 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 conversion of the securities issued hereunder and/or... other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the Issuance Date (including, without limitation, all securities issued on the date of this Agreement under the Registration Statement), provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities, and (c) securities issued pursuant to 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 equity holders 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 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 View More

Excluded Securities. Any Common Stock issued or issuable: (i) in connection with any Approved Stock Plan, provided that the number of shares granted pursuant to this clause (i) shall not exceed five percent (5%) of the total issued and outstanding shares of the Company; (ii) upon conversion of the Notes or the exercise of this Warrant; (iii) in connection with the payment of any Interest Shares (as defined in the Securities Purchase Agreement) on the Notes (as defined in the Securities Purchase Agreement); (iv) in... connection with any strategic acquisition or transaction by the Company, whether through an acquisition of stock or a merger of any business, assets or technologies, joint venture, corporate partnering arrangement, or otherwise; and (v) upon exercise of any Options or Convertible Securities which are outstanding on the day immediately preceding the Subscription Date, provided that the terms of such Options or Convertible Securities are not amended, modified or changed on or after the Subscription Date View More

Excluded Securities. Any Common Stock issued or issuable or deemed to be issued in accordance with Section 2(a) hereof by the Company: (A) in connection with any Approved Stock Plan; (B) upon conversion of the SPA Securities or upon the exercise of the SPA Warrants; (C) upon conversion, exercise or exchange of any Options or Convertible Securities which are outstanding on the day immediately preceding the Subscription Date, provided that such issuance of Common Stock upon exercise of such Options or Convertible... Securities is made pursuant to the terms of such Options or Convertible Securities in effect on the date immediately preceding the Subscription Date and such Options or Convertible Securities are not amended, modified or changed on or after the Subscription Date; (D) in connection with any stock split, stock dividend, recapitalization or similar transaction by the Company for which adjustment is made pursuant to Section 2(b); and (E) in connection with mergers, acquisitions, strategic business partnerships or joint ventures, in each case with non-affiliated third parties and otherwise on an arm's-length basis, the primary purpose of which is not to raise additional capital View More

Excluded Securities. Means, with respect to any Equity Securities issued by the Company, (i) the Notes and the Conversion Shares; (ii) Common Stock issued or issuable as a dividend or distribution on or upon conversion of the preferred stock of the Company; (iii) Common Stock issued or issuable by reason of a dividend, stock split, split-up or other distribution on Common Stock, (iv) any Common Stock issued or issuable (including pursuant to options or warrants) to financial institutions in connection with... commercial credit arrangements approved by the Board of Directors of the Company, (v) any Common Stock issued or issuable to employees, officers, or directors of the Company or their respective immediate family members pursuant to currently outstanding or newly created options or warrants that are approved by the Board of Directors of the Company or a committee thereof, (vi) Common Stock issued upon conversion of the Company's 5% Convertible Subordinated Notes due on or about the third anniversary of the Series C Closing Date as defined in the Restated Charter in the aggregate principal amount of E1,374,750, (vii) shares or interests issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement or the issuance of any of the warrants listed on Section 5.3(a) of the Schedule of Exceptions to this Agreement or the issuance of any shares of Common Stock upon exercise thereof, (viii) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination approved by the Board of Directors of the Company, (ix) any Equity Securities issued in connection with any recapitalization or similar event by the Company, (x) any Equity Securities that are issued by the Company pursuant to an IPO, and (xi) any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including joint ventures, manufacturing, marketing or distribution arrangements provided that the issuance of shares therein has been approved by the Board of Directors of the Company; View More

Excluded Securities. Any Common Stock issued or issuable: (i) in connection with any Approved Stock Plan, including amendments to or exchanges of securities issued thereunder; (ii) upon exercise of the SPA Warrants; (iii) in connection with any stock split, stock dividend, recapitalization or similar transaction by the Company for which adjustment is made pursuant to Section 2(b); and (iv) upon exercise of any Options or Convertible Securities which are outstanding on the day immediately preceding the Subscription... Date, provided that the terms of such Options or Convertible Securities are not amended, modified or changed on or after the Subscription Date to increase the number of shares issuable thereunder, to decrease the exercise price thereof, to extend the expiration date thereof or to change the anti-dilution provisions thereof, and provided further that any such amendment, modification or change shall only trigger an adjustment of the Exercise Price if such amendment, modification or change would otherwise constitute a Dilutive Issuance. View More

Excluded Securities. (i) any equity or equity equivalent security of the Company issued or issuable, including any shares of Common Stock issued or issuable upon conversion or exercise thereof, in connection with any Approved Stock Plan, (ii) any shares of Common Stock issued or issuable upon exercise of any Warrants; provided that the terms of such Warrants are not amended, modified or changed on or after the Subscription Date, (iii) any shares of Common Stock issued or issuable pursuant to Section 1(b) of the... Amended Securities Purchase Agreement; (iv) any shares of Common Stock issued or issuable upon conversion of any Options or Convertible Securities which are outstanding on the day immediately preceding the Subscription Date, provided that the terms of such Options or Convertible Securities are not amended, modified or changed on or after the Subscription Date and (v) the Series A Preferred Stock, par value $0.01 per share, of the Company issuable to Novogen Limited ("Novogen") pursuant to the Asset Purchase Agreement, dated as of December 21, 2010, by and among the Company, Novogen and Novogen Research Pty Limited in the form attached to the Current Report on Form 8-K filed by the Company on December 22, 2010 (the "Asset Purchase Agreement") (the "Series A Preferred Stock") and the shares of Common Stock issuable upon conversion by Novogen of the Series A Preferred Stock on the terms set forth in the certificate of designations attached as Exhibit A to the Asset Purchase Agreement View More