Excluded Securities

Excluded Securities. Means: (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 Company Warrants, issued pursuant to the Purchase Agreement; (iii) any shares of Common Stock issuable upon conversion of the Preferred Stock (as defined in the Purchase Agreement) issued or issuable... pursuant to the Purchase Agreement; (iv) any shares of Common Stock issued as payment for any dividends due and owing on the Preferred Stock in accordance with its terms; (v) 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 Issuance Date, provided that the terms of such Options or Convertible Securities are not amended, modified or changed on or after the Issuance Date, (vi) capital stock, Options or Convertible Securities issued as consideration for an acquisition or strategic transaction approved by a majority of the disinterested directors of the Company, provided that any such issuance shall only be 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, for the purposes of this clause (vi), 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, (vii) the issuance of securities pursuant to stock splits, stock dividends or similar transactions where are shareholders are treated equally and (viii) the issuance of securities to commercial banking institutions or lessors in connection with commercial loans, commercial credit arrangements, equipment financings, commercial property leases or similar transactions that are for purposes other than raising equity capital. 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 or the exercise of the Warrants; (iii) pursuant to a bona fide firm commitment underwritten public offering with a nationally recognized NASD registered underwriter which 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) in connection with the... payment of any shares on the Notes or upon exercise of the Warrants; (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; (vi) upon conversion of any Options or Convertible Securities which are outstanding on the day immediately preceding the date hereof, provided that the terms of such Options or Convertible Securities are not amended, modified or changed on or after the date hereof; (vii) upon exercise of warrants issued to consultants prior to the date hereof, upon exercise of additional warrants issued or issuable to consultants, in an amount not to exceed, in the aggregate, 50,000 shares of Common Stock, and upon exercise of warrants issued to Ardour Capital in connection with the transactions contemplated by the Transaction Documents; (viii) upon issuance or exercise of Options or Convertible Securities in connection with a Soft Call of Warrants (as defined in the Securities Purchase Agreement) by the Company; (ix) in connection with a Strategic Financing (as defined below); and (ix) shares issued to Tejas Securities Group, Inc. as fees (calculated based upon a price per share of $2.00) in connection with the financing entered into as of the date hereof. View More

Excluded Securities. Means (i) securities issued as a result of any stock split, stock dividend or reclassification of Common Stock or Preferred Stock, distributable on a pro rata basis to all holders of Common Stock or Preferred Stock; (ii) securities issued pursuant to a stock option plan or deferred compensation plan approved by the Board of Directors of the Company; (v) securities issued by the Company upon the conversion or exercise of options, warrants, or convertible securities previously issued by the... Company; or (iii) any securities issued to the Holder, EPOD Solar, Inc. ("EPOD"), any affiliate of the Holder or EPOD or any recipient of securities issued by the Company, as directed by the Holder or EPOD, as applicable, or any affiliate of the Holder or EPOD, as applicable. View More

Excluded Securities. Means any shares of Common Stock issued or issuable: (i) in connection with any Approved Stock Plan; or (ii) upon exercise of the Warrants and pursuant to the terms of the Notes; or (iii) to Wanxiang and its Affiliates in connection with transactions exclusively between the Company and its Affiliates on the one hand and Wanxiang and its Affiliates on the other.

Excluded Securities. Also means Voting Securities and Voting Security Equivalents issued or issuable (a) pursuant to or in connection with the Recapitalization (including, without limitation, the issuance and sale for cash of Common Stock to certain WCAS Securityholders and the issuance and sale for cash of the Series H Preferred Stock), (b) pursuant to the Series H Certificate of Designation in accordance with the Equity Purchase and Rights Offering Agreement, (c) upon the conversion, exchange or exercise of the... Series H Preferred Stock or (d) pursuant to or in connection with the Rights Offering. 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 or the exercise of the SPA Warrants; (which, for purposes of clarification, shall not include any shares of Common Stock issued as Interest Shares and the provisions of Section 7 of the SPA Securities shall apply upon any issuances of Interest Shares); and (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(d). View More

Excluded Securities. Means any (A) 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 employee benefit plan or other issuance, employment agreement or option grant or similar agreement which has been approved by the Board of Directors of the Company; (B) shares of Common Stock issued upon the... conversion or exercise of options or convertible securities issued prior to the date hereof, provided such securities are not amended after the date hereof to increase the number of shares of Common Stock issuable thereunder or to lower the exercise or conversion price thereof; (C) Securities issued pursuant to this Agreement and Common Stock issued upon the exercise or conversion of those Securities; (D) shares of Common Stock issued or issuable by reason of a dividend, stock split or other distribution on shares of Common Stock; and (E) capital stock, options or convertible securities issued as consideration for an acquisition or strategic transaction approved by a majority of the disinterested directors of the Company, provided that any such issuance shall only be 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, for the purposes of this clause, 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. Means any Company Common Stock or other securities or debt obligations issued or issuable: (i) in connection with any Approved Stock Plan; (ii) upon conversion of the Notes or Milestone Notes; (iii) pursuant to a bona fide firm commitment underwritten public offering with an institution that regularly underwrites as a principal part of its business public offerings on a firm commitment basis which generates gross proceeds to the Company in excess of $15,000,000 (other than an "at-the-market... offering" as defined in Rule 415(a)(4) under the 1933 Act and "equity lines"); (iv) in connection with corporate partnering or licensing transactions or in connection with a strategic merger, acquisition, consolidation or purchase of substantially all of the securities or assets of a corporation or other entity, on terms approved by the Board of Directors and the primary purpose of which is not to raise equity capital; (v) upon exercise or conversion of any options, warrants or convertible securities of the Company which are outstanding on the day immediately preceding the date herewith, provided that the terms of such options, warrants or convertible securities are not amended, modified or changed on or after the date herewith to decrease the price, increase the number of shares issuable thereunder or extend the term of such options or convertible securities; and (vi) in the Bridge Closings. View More

Excluded Securities. (i) the Qualifying Employee Stock, (ii) the Exchange Stock, (iii) the shares of Common Stock or Series A Preferred Stock issuable or issued upon the exercise of the Warrants, (iv) any shares of Common Stock or Common Stock Equivalents issued for non-cash consideration in connection with any merger, consolidation, acquisition or similar business combination, (v) any shares of Common Stock issued pursuant to the commitments disclosed on Schedule 8.1 of the Warrant Agreement and (vi) any shares of... Common Stock or Common Stock Equivalents issued in connection with any joint venture, licensing, development or sponsorship activities in the ordinary course of business. View More

Excluded Securities. Means (i) any Company Equity issued to current or former employees, directors or consultants of the Company or its subsidiaries or Affiliates pursuant to the Company's stock incentive or compensation plans approved by the Board of Directors, or (ii) any Company Equity issued by the Company after the Issue Date in an aggregate amount not to exceed 1,000,000 shares of Common Stock (including securities convertible into or exchangeable for shares of Common Stock on an "as converted" or "as... exchanged" basis) (as adjusted to account for any (a) stock split, (b) subdivision, (c) dividend or distribution payable in shares of Common Stock (or other securities or rights convertible into or entitling the holder thereof to receive directly or indirectly shares of Common Stock), (d) combination or (e) other similar recapitalization or event, in each case, occurring after the Issue Date) View More