Excluded Securities

Excluded Securities. Any Options or other securities issued in connection with any Approved Stock Plan and any Common Stock issued or issuable: (i) in connection with any Approved Stock Plan up to a maximum of ten percent (10%) of the outstanding Common Stock; (ii) upon conversion of, or in exchange for, the Notes or the exercise of the Class A Warrants or Class B Warrants; (iii) in connection with any acquisition 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) securities issued in connection with corporate partnering transactions on terms approved by the Board of Directors of the Company and the primary purpose of which is not to raise equity capital; and (v) 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. View More

Excluded Securities. Means any Common Stock issued or issuable: (i) in connection with any Approved Stock Plan, (ii) upon conversion of the SPA Securities, including, without limitation, upon a Company Conversion pursuant to Section 8 of the SPA Securities, or exercise of the Warrants; and (iii) upon exercise of any Options or Convertible Securities which are outstanding immediately prior to the execution of the Securities Purchase Agreement; provided that the terms of such Options or Convertible Securities are not... amended, modified or changed in any manner more favorable to the holder thereof on or after such time. View More

Excluded Securities. Any Common Stock issued or issuable: (i) in connection with any Approved Stock Plan; (ii) upon the exercise of the Warrants; (iii) issuance of the Company's securities to any employee, officer, director or consultant in exchange for services provided to the Company; (iv) in connection with any merger or acquisition of any assets or securities of another business, corporation or entity by the Company, the primary purpose of which is not to raise equity capital; or (v) upon conversion, exercise... or exchange 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: (i) in connection with any Approved Stock Plan; (ii) upon exercise of the Warrants; (iii) pursuant to a bona fide firm commitment underwritten public offering with a nationally recognized underwriter that generates gross proceeds to the Company in excess of $25,000,000 (other than an "at-the-market offering" as defined in Rule 415(a)(4) under the 1933 Act and "equity lines"); (iv) upon conversion of any Options or Convertible Securities that 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; (v) in connection with any acquisition, merger, joint venture or strategic investment that has been approved by the Board of Directors of the Company; (vi) securities issued to commercial banks or financial institutions, the primary business of which is not making equity-related loans; or (vii) securities issued to lessors in connection with commercial credit arrangements, equipment financings or similar transactions or to independent contractors or vendors of the Company in connection with bona fide business transactions. View More

Excluded Securities. Any Common Stock issued or issuable: (i) in connection with any Approved Stock Plan; (ii) upon exercise of the SPA Warrants; (iii) pursuant to a bona fide firm commitment underwritten public offering with a nationally recognized underwriter which generates gross proceeds to the Company in excess of either (A) $20,000,000 (other than an "at-the-market offering" as defined in Rule 415(a)(4) under the 1933 Act and "equity lines") and at a purchase price of no less than $6.00 per share (as adjusted... for stock splits, stock dividends, reverse stock splits, recapitalizations, reclassifications and similar events) or (B) $30,000,000 (other than an "at-the-market offering" as defined in Rule 415(a)(4) under the 1933 Act and "equity lines") (each, an "EXCLUDED OFFERING"); (iv) in connection with any acquisition 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 in an amount not to exceed, in the aggregate 20% of the outstanding shares of Common Stock in any calendar year; and (vi) upon conversion of any Options or Convertible Securities which are outstanding on the day immediately preceding the Issuance Date, provided that the terms of such Options or Convertible Securities are not amended, modified or changed on or after the Issuance Date View More

Excluded Securities. Common Shares issued or deemed to be issued by the Corporation: (A) in connection with an Approved Share Plan; (B) in connection with a bank financing or strategic partnership or investment; (C) in a Qualified Public Offering; (D) upon issuance of the shares of Series E Preferred Stock or Dividend Shares or upon conversion of the shares of Series E Preferred Stock or upon exercise of any Warrants that were outstanding on the Original Issue Date; (E) upon exercise of Options or Convertible... Securities; (F) upon issuance or conversion of any shares of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock; (G) upon the payment of any dividend in respect of the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock; and (H) in connection with any share split, share dividend, recapitalization or similar transaction by the Corporation for which adjustment is made pursuant to Section 9(b) View More

Excluded Securities. Any Common Stock issued or issuable: (i) in connection with any Approved Stock Plan; (ii) upon exercise of the SPA Warrants; (iii) pursuant to a bona fide firm commitment underwritten public offering with a nationally recognized underwriter which generates gross proceeds to the Company in excess of $10,000,000 (other than an "at-the-market offering" as defined in Rule 415(a)(4) under the Securities Act and "equity lines"); (iv) in connection with any acquisition 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 (a "Qualifying Acquisition"); provided such amount does not exceed, in the aggregate 15% of the outstanding shares of Common Stock in any twelve month period (the "15% Limit"); provided further that the 15% Limit shall not apply to any such Qualifying Acquisition if the Weighted Average Price of the Common Stock is greater than 125% of the Exercise Price for at least twenty (20) Trading Days out of the thirty (30) consecutive Trading Days prior to the public announcement of such Qualifying Acquisition; (v) upon conversion of any Options or Convertible Securities (other than any Options issued pursuant to an Approved Stock Plan) which are outstanding on the day immediately preceding the Issuance Date, provided that the terms of such Options or Convertible Securities are not amended, modified or changed on or after the Issuance Date; or (vi) in respect of subdivisions, stock dividends or capital reorganizations affecting the Common Stock View More

Excluded Securities. Securities issued in connection with (i) any equity incentive plan approved by the Board of Directors of the Company; (ii) upon conversion of any outstanding Options or Convertible Securities outstanding prior to the date of this Agreement; (iii) issuances of equity to a seller, or in the case of a merger, the equity holders of the target company in such merger, or the officers or employees thereof, in each case in connection with a bona fide merger, business combination transaction or... acquisition of stock or assets outside of the ordinary course that is approved by the Board of Directors of the Company; (iv) a stock split or other subdivision or combination, or a stock dividend made to all holders of any Company equity on a pro rata basis; or (v) warrants exercisable into shares of Common Stock on customary terms issued to a bank or equipment lessor acting as bona fide lender in connection with a credit facility or equipment leasing provided by such Person View More

Excluded Securities. Means any (i) shares of Common Stock or Options offered or sold to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined herein), provided that (A) all such issuances pursuant to this clause (i) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately prior to the date hereof on a fully-diluted basis; (ii) the shares of Common Stock issuable upon conversion of the Notes or otherwise... pursuant to the terms of the Notes, (iii) shares of Common Stock issued upon the conversion of (or otherwise pursuant to) future securities that are approved by the board of directors of the Company; and (v) subject to agreement by the Purchaser, securities issued in connection with a Non-Qualified IPO. View More

Excluded Securities. Any shares of Common Stock issued or issuable, or deemed issued or issuable pursuant to Section 2(a): (i) in connection with any Approved Stock Plan, (ii) upon exercise of the Investor Warrants; provided, that the terms of such Investor Warrants are not amended, modified or changed on or after the Subscription Date, (iii) upon conversion, exercise or exchange 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 (iv) 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 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 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