Excluded Securities

Excluded Securities. Means, collectively, (i) shares of capital stock issued pursuant to a stock dividend or a stock split or other subdivision of shares; (ii) Common Stock issued upon exercise of this Warrant; (iii) Common Stock issued by the Company in any public offering registered under the Securities Act, which offering results in net proceeds to the Company of at least $20,000,000 and a price per share of Common Stock of not less than the... Warrant Purchase Price then in effect; and (iv) shares of Common Stock issued or issuable pursuant to conversion of the Convertible Subordinated Notes, the Series D Preferred Stock of the Company or upon exercise of other Equity Rights of the Company issued and outstanding as of the date hereof; and (v) shares of Common Stock issued, issuable or reserved for issuance to directors, officers and employees of the Company or any other Company Party in connection with their services as directors, officers or employees pursuant to any Options issued by the Company pursuant to any Benefit Plan which has been duly adopted and approved by the shareholders of the Company within a one (1)-year period following the date of initial grant under such Benefit Plan and in existence on the date hereof. View More

Excluded Securities. Means (i) any options issued or issuable pursuant to a Stock Option Plan and any shares of Common Stock issuable upon exercise of any options granted pursuant to a Stock Option Plan; provided, that any shares of Common Stock which are so issued or issuable shall not exceed 1,660,466 shares of Common Stock in the aggregate, (ii) stock issued upon the conversion of any Convertible Securities or the exercise of any options, warrants or other rights to acquire capital stock of the Company issued on... or before the date hereof, including without limitation the Existing Shareholder Warrants, the Spielberg Warrants, the Universal Warrants, the H&Q Warrants and the Imperial Bank Warrants (iii) stock issued in connection with any stock split, stock dividend or recapitalization by the Company, (iv) Common Stock issued in a Public Offering and (v) Series A Preferred Stock issued pursuant to a Strategic Investment (and any Common Stock issuable upon conversion thereof). View More

Excluded Securities. Means (i) the Company's warrants to purchase an aggregate of 608,238 shares of Common Stock at $.53 per share issuable to Universal City Studios, Inc. and Forth Investments, LLC (collectively "Universal and Spielberg Warrants"), (ii) warrants to purchase an aggregate of 59,435 shares of preferred stock to be issued to the Company's placement agent (the "Placement Agent") in the Company's Pending Offering and exercisable at $2.019 per share, (iii) warrants to purchase an aggregate of 4,253,327... shares of Common Stock at $6.057 per share to be issued to the Company's Common Stock holders in the Pending Offering (the "Offering Warrants"), (iv) options to purchase an aggregate of 1,660,466 shares of Common Stock issued or issuable under the Company's 1997 Stock Option Plan (the "Incentive Stock Options"), (v) an aggregate of 5,943,536 shares of Series A Preferred Stock to be issued in the Pending Offering at $2.019 per share (the "Offered Series A Preferred Stock"), (vi) warrants to purchase an aggregate of up to 5,943,536 shares of Common Stock to be issued in the Pending Offering (the "Purchaser Warrants") exercisable at $.01 per share and (vii) any shares of Common Stock issued upon exercise of the Spielberg Warrants, the Offering Warrants or the Incentive Stock Options, the Purchaser Warrants, any shares of Preferred Stock issued upon exercise of the Placement Agent Warrants (the "Placement Agent Preferred Stock"), and any shares of Common Stock issued upon conversion of the Offered Series A Preferred Stock or the Placement Agent Preferred Stock. View More

Excluded Securities. Means any Common Stock issued or issuable: (i) in connection with acquisitions with one or more non-affiliated third parties on an arm's length basis, the primary purpose of which is not to raise additional capital; (ii) in connection with the grant of options to purchase Common Stock or other stock-based awards or sales, with exercise or purchase prices not less than the market price of the Common Stock on the date of grant or issuance, which are issued or sold to employees, officers or... directors of the Company for the primary purpose of soliciting or retaining their employment or service pursuant to an equity compensation plan approved by the Company's Board of Directors, and the Common Stock issued upon the exercise thereof; (iii) upon the exercise of the Warrants; (iv) upon exercise of any Options or Convertible Securities which are outstanding on the day immediately preceding the Subscription Date and options issued pursuant to clause (ii) above, provided that the terms of such Options or Convertible Securities are not amended, modified or changed on or after the Subscription Date and the terms of any option issued pursuant to clause (ii) above are not amended on or after their applicable issuance dates. View More

Excluded Securities. Means each of the following: (a) Common Stock, Options or Convertible Securities issued in connection with the acquisition of a bona fide operating company or assets for use in Issuer's business or any business that Issuer proposes to engage in following such acquisition, whether through purchase, merger, consolidation, tender offer or otherwise, provided that the primary purpose of Issuer entering into any such transaction will not be to raise ... capital, directly or indirectly, or otherwise to avoid the anti-dilution provisions of this Warrant; (b) Except for purposes of Section 2.4, Common Stock issued or issuable pursuant to any stock split, dividend or distribution payable in additional shares of Common Stock or other securities or rights convertible into, or entitling the holder thereof to receive directly or indirectly, additional shares of Common Stock without payment of any consideration by such holder; (c) Common Stock, Options or Convertible Securities issued or issuable to employees, consultants or directors of Issuer directly or pursuant to a stock option plan, employee stock purchase plan or restricted stock plan, or other similar arrangements related to compensation for services in effect on the date of the Main Agreement, or 20 similar plans or arrangements approved by Issuer's Board of Directors after the date of the Main Agreement, in each case in the ordinary course of business; provided, that "ordinary course of business" for these purposes shall include stock option or warrant grants to officers and employees previously employed by the seller or its affiliates in an acquisition described in clause (a) above; (d) Common Stock issued or issuable upon the exercise of any options or warrants to purchase Common Stock outstanding on the date of the Main Agreement or upon conversion of any securities convertible into Common Stock outstanding on the date of the Main Agreement, in each case in accordance with the terms of such options, warrants or securities in effect on the date of the Main Agreement; (e) Common Stock, Options or Convertible Securities issued or issuable to any bank or equipment lessor in a transaction primarily for non-equity financing purposes (which transaction, by way of example and without limitation, shall not include notes convertible or exchangeable for Common Stock or other equity securities of Issuer), provided, that the Daily Market Price (determined as of the closing date of such transaction) of Common Stock multiplied by the number of shares of Common Stock issuable in connection with such transaction or series of related transactions (or upon exercise of Options or conversion of Convertible Securities issuable in connection with such transaction or series of related transactions) shall not exceed ten percent (10%) of the total amount of debt financing provided by such bank or equipment lessor in such transaction or series of related transactions; (f) Common Stock, Options or Convertible Securities issued or issuable to strategic partners in transactions primarily for the purposes of establishing (1) strategic alliances in the media, advertising, direct marketing, entertainment, leisure, retail or wholesale distribution industries or (2) contractual relationships with persons who will assist in the marketing and promoting of Issuer and its subsidiaries and their respective products and services (and not primarily for financing purposes); (g) Common Stock, Options or Convertible Securities issued or issuable in connection with the implementation of a "poison pill" or similar anti-takeover mechanism; and (h) Common Stock issued or issuable upon exercise of this Warrant. View More

Excluded Securities. Means (A) securities issued (or options or ------------------- warrants therefor) to employees, directors, consultants, suppliers, customers or other business partners for the primary purpose of soliciting or retaining their services, (B) securities issued pursuant to the conversion or exercise of convertible or exercisable securities, (C) securities issued in connection -2- with a bona fide strategic investment by or business acquisition of... or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, or (D) securities issued pursuant to equipment leases or secured debt financings. View More

Excluded Securities. Has the meaning set forth in the SPA Notes.

Excluded Securities. Means (i) shares of Common Stock issued or issuable pursuant to the Purchase Agreement, and this Warrant, (ii) shares of Common Stock deemed to have been issued by the Company in connection with an Approved Stock Plan, (iii) shares of Common Stock (including options and warrants) issuable upon the exercise of any options or warrants outstanding on the date hereof or (iv) shares of Common Stock issued or deemed to be issued by the Company in connection with a strategic acquisition by the Company... of the assets or business, or division thereof, of another Person. View More

Excluded Securities. Means (i) the Company's warrants to purchase an aggregate of 304,119 shares of Common Stock at $1.06 per share issuable to Universal City Studios, Inc. and Forth Investments, LLC (collectively "Universal and Spielberg Warrants"), (ii) warrants to purchase an aggregate of 29,718 shares of the Company's Preferred Stock issued to Hambrecht & Quist, LLC (the "H&Q Warrant"), exercisable at $4.038 per share, (iii) warrants to purchase an aggregate of 2,126,664 shares of Common Stock at $12.114 per... share issued to certain of the Company's Common Stock holders (the "Offering Warrants"), (iv) options to purchase an aggregate of up to 2,071,051 shares of Common Stock issued or issuable under stock option plans approved by the Company's Board of Directors from time to time 2 (the "Incentive Stock Options"), (v) an aggregate of 2,971,768 shares of Series A Preferred Stock issued at $4.038 per share (the "Series A Preferred Stock"), (vi) warrants to purchase an aggregate of up to 2,971,768 shares of Common Stock (the "Purchaser Warrants") exercisable at $0.02 per share, issued in connection with the sale of the Series A Preferred Stock, (vii) an aggregate of 928,678 shares of the Company's Series B Redeemable Preferred Stock (the "Series B Preferred Stock") issued at $4.038 per share, (viii) warrants to purchase an aggregate of up to 1,857,355 shares of Common Stock ultimately issued in connection with the sale of the Series B Preferred Stock (the "Series B Warrants"), exercisable at $0.02 per share, (ix) warrants to purchase up to 32,864 shares of Common Stock at an exercise price of $0.02 per share issued pursuant to a settlement agreement between the Company and one of its stockholders, and any shares of Common Stock issuable upon exercise thereof, (x) any shares of Common Stock issued upon exercise of the Universal and Spielberg Warrants, the H&Q Warrant, the Offering Warrants, the Series B Warrants, the Incentive Stock Options or the Purchaser Warrants, (xi) any shares of Common Stock issued upon conversion of the Offered Series A Preferred Stock or the Series B Preferred Stock and (xii) any shares of Common Stock issued or issuable under the Company's 2003 Equity Incentive Plan, 2003 Employee Stock Purchase Plan or other equity incentive or stock purchase plans approved by the Company's Board of Directors from time to time. View More

Excluded Securities. Means (a) the Warrant Shares issuable hereunder, the Notes, and any shares of Common Stock issuable upon conversion of the Notes; (b) shares of Common Stock, restricted stock units or options to employees, officers, directors, consultants and investor relation agencies of the Company pursuant to the Company's equity incentive plans or pursuant to compensation agreements authorized by the Board of Directors; provided, however, that any such issuances to consultants and investor relation agencies... shall be limited to 1,250,000 shares in the aggregate; (c) securities upon the exercise or exchange of or conversion of securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the Issuance Date, provided that such securities have not been amended since the Issuance Date to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities (other than in connection with stock splits or stock combinations) or to extend the term of such securities; (d) securities issued pursuant to acquisitions or strategic transactions and the payment of contractor invoices in the ordinary course of business approved by a majority of the disinterested directors of the Company, provided that (i) such securities are issued as "restricted securities" (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith, (ii) such securities do not contain any provisions permitting to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities or contain any other resets or other adjustment provisions (other than in connection with stock splits, stock combinations or any securities issued pursuant to that certain Asset Purchase Agreement, dated as of December 20, 2024, as may be amended, between the Company and CompuSystems, Inc., provided that such securities have not been amended since the date that the forms thereof were filed with the SEC as exhibits to the Company's Current Report on Form 8-K filed with the SEC on December 26, 2024 to increase the number of such securities or to decrease the exercise price, exchange price or conversion price or to add any other resets or other like adjustment provisions), and (iii) 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; and (e) securities issued as "restricted securities" (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith; provided that such securities do not contain any provisions permitting to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities or contain any other resets or other adjustment provisions (other than in connection with stock splits or stock combinations). 20 View More