Excluded Securities

Excluded Securities. Means (i) the Debentures, the Warrants and the Underlying Shares, (ii) shares of Common Stock of the Company, or any options, warrants or other securities convertible or exchangeable therefor, that are issued or deemed to have been issued from time to time in connection with an Approved Stock Plan, (iii) shares of Common Stock of the Company issuable upon the exercise of any options, warrants or other securities convertible or exercisable therefor outstanding on the date hereof and listed in... Schedule 2.1(c) of the Purchase Agreement, (iv) shares of Common Stock of the Company, or any options, warrants or other securities convertible or exchangeable therefor, that are issued or deemed to have been issued as consideration for an acquisition by the Company of a division, assets or business (or stock constituting any portion thereof) from another Person, (v) warrants for up to 200,000 shares of Common Stock per year, not exceeding 600,000 shares in the aggregate, provided that the conversion price of any such warrants is above the Per Share Market Value on the date the warrant is issued, (and the Common Stock issued upon exercise thereof) issued after the date hereof by the Company for purposes 8 other than raising capital, (vi) either Common Stock or preferred stock convertible into Common Stock, provided that such stock shall be issued at a price per share of not less than $4.50 in return for proceeds not to exceed the greater of (1) $2,000,000 or (2) the amount expended by the Company in the redemption of the Company's Series C floating preferred stock; provided, further however, that (a) such stock shall not be issued prior to December 1, 1999 and resales of such Common Stock (or Common Stock issuable upon conversion of such preferred stock) shall not be registered under the Securities Act prior to April 1, 2000, (b) the purchasers of such Common Stock shall be prohibited from executing short sales of Common Stock under substantially the same terms and conditions as the Purchasers are hereunder, and (c) Brown Simpson shall have a right of first offer with respect to such sale of stock at a price that is not less than the price at which such stock is eventually sold; and provided further that if preferred stock is issued, the conversion terms of such preferred stock shall be no more favorable to investors than the conversion terms in the Debenture and (vii) warrants described on Schedule 2.1(m) to the Securities Purchase Agreement. View More

Excluded Securities. Any Common Stock issued or issuable: (i) to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Share Plan, (ii) upon the conversion or exercise of Common Stock Equivalents (other than standard Options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion price of any such Common Stock Equivalents is not lowered, none of such Common Stock... Equivalents are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Common Stock Equivalents are otherwise materially changed in any manner that adversely affects the Holder or any of the Buyers; and (iii) the Warrant Shares issuable upon exercise of any Warrant, provided that the exercise price of such Warrant is not lowered and such Warrant is not amended to increase the number of shares issuable thereunder. View More

Excluded Securities. Means: (i) capital stock, Options or Convertible Securities issued to directors, officers, employees or consultants of the Company in connection with their service as directors of the Company, their employment by the Company or their retention as consultants by the Company pursuant to an Approved Stock Plan, including but not limited to, the issuance of capital stock upon the exercise or conversion thereof, (ii) shares of Common Stock issued upon the conversion or exercise of Options or... Convertible Securities that were issued and outstanding on the date immediately preceding the Subscription Date, provided such securities are not amended after the Subscription Date to increase the number of shares of Common Stock issuable thereunder or to lower the exercise or conversion price thereof, (iii) securities issued pursuant to the Lease Agreement and securities issued upon the exercise or conversion of those securities, (iv) the Acquisition Shares, (v) the issuance of Common Stock or Common Stock Equivalents to the Agent in payment of the fees owed to the Agent as disclosed in Schedule 4.21 of the Lease Agreement, and (vi) capital, Options or Convertible Securities issued as consideration for an acquisition or strategic transaction approved by a majority of the disinterested directors of the Company, excluding any acquisition or 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. 13 View More

Excluded Securities. Means any Common Stock issued or issuable: (i) in connection with any Approved Stock Plan; (ii) upon conversion of the Notes; (iii) pursuant to a bona fide firm commitment underwritten public offering with a nationally recognized underwriter (other than an "at-the-market offering" as defined in Rule 415(a)(4) under the 1933 Act, "equity lines" or a non-underwritten offering that is effected on a shelf registration statement); (iv) in connection with the payment of any Interest Shares on the... Notes or any shares payable pursuant to the "Argyle Notes" (as defined in the Securities Purchase Agreement); and (v) 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. View More

Excluded Securities. Shares of Common Stock deemed to have been issued or sold by the Company (i) in connection with any employee benefit plan which has been approved by the Board of Directors of the Company, pursuant to which the Company's securities may be issued to any employee, officer or director for services provided to the Company, (ii) in connection with any acquisition by the Company, whether through an acquisition for stock or a merger, of any business, assets or technologies the... primary purpose of which is not to raise equity capital, (iii) in connection with the closing of a merger between the Company and Aurora Energy, Ltd. pursuant to that certain Agreement and Plan of Merger dated January 31, 2005; (iv) pursuant to a bona fide firm commitment underwritten public offering with a nationally recognized underwriter which generates net proceeds to the Company in excess of $30,000,000 (other than an "at-the-market offering" as defined in Rule 415(a)(4) under the 1933 Act and "equity lines") and (v) upon conversion of any Options or Convertible Securities which are outstanding under any stock option plan of the Company 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. Any shares of Common Stock issued or issuable (i) in connection with a strategic partnership or joint venture in which there is a significant commercial relationship with the Company and in which the primary purpose of which is not to raise capital, (ii) pursuant to a bona fide firm commitment underwritten public offering with a nationally recognized underwriter which generates gross proceeds in excess of $45,000,000 (other than an "at-the-market offering" as defined in Rule 415(a)(4) under the... 1933 Act and "equity lines"), (iii) upon conversion or exercise of any Options or Convertible Securities which are outstanding on the day immediately preceding the [Issuance Date {Initial A-1 Warrants} / Initial Closing Date (as defined in the Securities Purchase Agreement) {Initial A-2 Warrants, Subsequent Warrants and Additional Warrants}], provided that the terms of such Options or Convertible Securities are not amended, modified or changed on or after the [Issuance Date {Initial A-1 Warrants} / Initial Closing Date (as defined in the -14- Securities Purchase Agreement) {Initial A-2 Warrants, Subsequent Warrants and Additional Warrants}], and (iv) pursuant to any subdivision of one or more classes of the Company's outstanding shares of Common Stock with respect to which an adjustment to the Exercise Price has been made pursuant to Section 7(b). View More

Excluded Securities. Any shares of Common Stock issued or issuable (i) in connection with a strategic partnership or joint venture in which there is a significant commercial relationship with the Company and in which the primary purpose of which is not to raise capital, (ii) pursuant to a bona fide firm commitment underwritten public offering with a nationally recognized underwriter which generates gross proceeds in excess of $45,000,000 (other than an ... "at-the-market offering" as defined in Rule 415(a)(4) under the 1933 Act and "equity lines"), (iii) upon conversion or exercise 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, and (iv) pursuant to any subdivision of one or more classes of the Company's outstanding shares of Common Stock with respect to which an adjustment to the Exercise Price has been made pursuant to Section 7(b). View More

Excluded Securities. Means the following securities issued by the Company or deemed to be issued by the Company pursuant to Section 2 of this Warrant: those excluded securities in both the Sunrise Investors and Sunrise Securities Corp.'s Warrants as amended by paragraphs 9.2 and 9.3 of the Settlement Agreement.

Excluded Securities. Means (i) up to 219,188 shares of Common Stock (subject to adjustment in the event of any stock splits, stock dividends or other recapitalization of the Common Stock) issuable upon exercise of warrants outstanding on the date hereof or upon exercise of warrants issued to the placement agents in the Private Placement; (ii) up to 1,024,425 shares of Common Stock (subject to adjustment in the event of any stock splits, stock dividends or other recapitalization of the... Common Stock) issuable upon exercise of options previously granted or to be granted under HT Medical's stock option plans; or (iii) securities issued as a result of any stock split, stock dividend or reclassification of Common Stock or Series A Preferred, distributable on a pro rata basis to all holders of Common Stock or Series A Preferred. View More

Excluded Securities. Means any Common Stock Equivalent issued by the Company (i) in the form of a subordinated convertible note due 2008 within six (6) months from the date hereof, and which terms may be more fully described therein, including a conversion price of no less than $5.00; (ii) pursuant to a private placement of public equity, or in connection with an equity line of credit, in either case approved by the Board of Directors of the Company; and (iii) in the case of (i) and (ii) hereof, any Common Stock... issuable upon the conversion or exercise of any such Common Stock Equivalent. View More