Excluded Transaction

Excluded Transaction. Shall mean the issuance and sale by the Corporation of (a) the Investor Warrants and the Lender Warrants (and the issuance of Common Stock upon the exercise of the Investor Warrants and the Lender Warrants) and (b) shares of capital stock or any other security convertible into capital stock of the Corporation, up to a maximum of 3,500,000 shares, which may be issued to any strategic investor pursuant to any arrangement approved by the Board of Directors.

Excluded Transaction. Means (i) any issuance by the Company to employees, consultants or directors of the Company of Common Stock Equivalents pursuant to a stock option plan or other employee benefit arrangement approved by the Board of Directors (and the issuance of Common Stock upon the exercise of such Common Stock Equivalents); (ii) any issuance of Common Stock as a dividend on shares of Series A Preferred Stock and shares of Series B Preferred Stock; (iii) any issuance of Common Stock upon the conversion or... exercise of outstanding Common Stock Equivalents, and (iv) the issuance and sale by the Company of the Investor Warrants and the Walker Warrants (and the issuance of Common Stock upon the exercise of the Investor Warrants and the Walker Warrants). View More

Excluded Transaction. Means (a) any issuance of up to an aggregate of 250,000 shares of restricted stock or options to purchase shares of Common Stock (subject to adjustment in the event of stock splits, combinations or similar occurrences) to employees, officers or directors of the Company pursuant to a stock option plan or other employee benefit plan approved by the Board of Directors or (b) any issuance of Warrant Shares.

Excluded Transaction. Means (a) any issuance of Common Stock pursuant to the exercise of any options that were outstanding under any of the Stock Option Plans as of the Closing Date, (b) any issuance of options to employees, consultants or strategic partners of the Corporation approved by the Board of Directors after the Closing Date, or any issuance of Common Stock pursuant to the exercise of such options, (c) any issuance of Common Stock (i) upon the conversion of shares of Series A Preferred Stock, (ii) as a... dividend on shares of Series A Preferred Stock, (iii) upon the exercise of the Beacon Warrant or (iv) upon conversion or exercise of any Common Stock Equivalents, and (d) any issuance of Common Stock in connection with any Liquidation Payment or any Sale Payment. View More

Excluded Transaction. Shall mean any transaction in which the Company issues any of its securities: (i) pursuant to any Convertible Securities currently outstanding on the date hereof in accordance with the terms of such Convertible Securities in effect on the date hereof; (ii) pursuant to its currently outstanding obligations, upon the occurrence of certain events, to issue Convertible Securities pursuant to (a) the Company's Letter Agreement with Ladenburg Thalmann dated August 6, 2001, as in effect on the date... hereof, which has been furnished in its entirety to the Purchasers or (b) the License and Supply Agreement between Biosearch Italia, S.P.A. and the Company dated as of October 2001, as in effect on the date hereof, pursuant to which the Company may issue shares of Common Stock to Biosearch Italia, S.P.A. upon conversion of promissory notes with a fixed conversion price greater than the Conversion Price hereunder ("Biosearch Notes"), which Biosearch Notes shall not exceed $7 million in principal amount and the form of which Biosearch Notes have been furnished in their entirety to the Purchasers; (iii) by reason of a dividend, stock split or other distribution on shares of Common Stock that is covered by Subsection 3(c)(i) or (ii) of the Notes; (iv) to any officer, director or employee of the Company pursuant to a bona fide option or equity incentive plan or arrangement duly adopted by the Board of Directors of the Company; (v) to any consultant of the Company as reasonable compensation for services rendered; (vi) in connection with any acquisition of assets or licensing of intellectual property or joint ventures with third parties not affiliated with the Company, each on reasonable terms necessary or desirable for the operation of the Company's business, which is not primarily a capital raising transaction; (vii) pursuant to any registered firm commitment underwritten public offering of Common Stock by a nationally recognized underwriter which is a take down from a shelf registration statement; (viii) pursuant to any registered public offering of Common Stock through a nationally recognized investment banking firm serving as agent and selling to unaffiliated parties through the Principal Market (other than an equity-line transaction) which is accomplished by means of a take down from a shelf registration statement; and (ix) to any publicly recognized mutual fund registered under the Investment Company Act of 1940, as amended, advised by a large brand-name single investment adviser registered under the Investment Advisers Act of 1940, as amended, with at least $5 billion in assets under direct management and to such other large financial institutions mutually agreed in writing in advance by the Company -2- and the Holder, in each case so long as only Common Stock is issued in such transaction which Common Stock is sold at a Per Share Selling Price greater than 90% of the then current market price of the Common Stock and provided that such transaction is not a Variable Rate Transaction or MFN Transaction. View More

Excluded Transaction. Means (a) any issuance of Common Stock Equivalents or Common Stock issuable or issued upon the exercise, conversion or exchange thereof (so long as the exercise price for such Common Stock Equivalent is greater than or equal to the greater of (i) the Conversion Price then in effect and (ii) the Market Price of the Common Stock issued at the time such Common Stock Equivalent was awarded) or (b) any issuance of Common Stock upon the exercise of any warrants, or conversion of any Common Stock... Equivalents, issued or outstanding on the date of this Note. View More

Excluded Transaction. Means (a) any issuance of options to purchase shares of Common Stock (subject to adjustment in the event of stock splits, combinations or similar occurrences) to employees, officers or directors of the Company pursuant to a stock option plan or other employee benefit arrangement, in each case, approved by the Board of Directors, (b) any issuance of Common Stock upon the exercise of any warrants, or conversion of any Common Stock Equivalents, issued or outstanding on the date of this Note, (iii)... any issuance of Common Stock or Common Stock Equivalents in consideration of an acquisition by the Company of assets or stock of another Person approved by the Board of Directors or (iv) any issuance of Common Stock or Common Stock Equivalents to any Person (other than Affiliates of the Company) with whom the Company has a business relationship, PROVIDED that the purpose of such issuance is not primarily to raise equity financing and such issuance is approved by the Board of Directors. View More

Excluded Transaction. Means (a) any issuance of Common Stock or securities -------------------- convertible into or exchangeable for Common Stock (i) as part of an arm's length commercial agreement approved by the Board of Directors, so long as such 11 issuance (on an as converted basis) is no greater than 1% of the issued and outstanding (non-diluted) shares of Common Stock, and all such issuances in the aggregate are no... greater than 5% of the issued and outstanding (non-diluted) shares of Common Stock, each as in effect immediately prior to such issuance, (ii) as part of an underwritten public offering, or (iii) to employees, consultants, officers or directors of the Company pursuant to a stock-incentive plan that has been duly approved by the Board of Directors and (b) any issuance of Common Stock (i) upon the conversion of Series A Preferred Stock, or (ii) as a dividend on shares of Series A Preferred Stock. View More

Excluded Transaction. Means (a) any issuance of up to an aggregate of 5,963,571 shares of restricted stock or options to purchase shares of Common Stock (subject to adjustment in the event of stock splits, combinations or similar occurrences) to employees, officers or directors of the Corporation pursuant to a stock option plan or other employee benefit arrangement approved by the Board of Directors, (b) capital stock issued as full or partial consideration for a merger, acquisition, strategic alliance or other... similar non-financing agreement approved by the Board of Directors and (c) any issuance of Common Stock (i) upon the conversion of shares of Preferred Stock, (ii) as a dividend on shares of Preferred Stock or (iii) upon conversion or exercise of any Common Stock Equivalents. View More

Excluded Transaction. Means (a) any issuance or grant ("award") of shares of stock, restricted stock or options to purchase shares of Common Stock as compensation, or as a pre-employment award, to employees, officers, directors or consultants of the Company or of any Subsidiary of the Company, provided that if at the time of such award the number of shares of Common Stock awarded and the number of shares of Common Stock issuable upon exercise of the stock option awarded, when combined with all other shares of Common... Stock issued or issuable pursuant to awards made pursuant to this clause (a) during the Exercise Period (i.e., excluding the Lund and Regal management awards and other awards existing on the date hereof) exceeds 5% of the fully diluted shares of Common Stock outstanding on the date of such award, then the new award shall not be deemed an Excluded Transaction, (b) any issuance of Warrant Shares, (c) any issuance of securities as part of the consideration in a merger or consolidation of the Company in which the Company is the surviving corporation and there has been no change in the terms of the Common Stock, (d) the issuance of up to 27,000,000 shares of Common Stock by the Company to acquire IFS of New Jersey, Inc. (including shares of Common Stock issued upon mandatory conversion of the Series E Junior Convertible Preferred Stock of the Company), (e) the issuance of up to 16,000,000 shares of Common Stock to investors in a private placement pursuant to subscription agreements on or before the date hereof, (f) the issuance of up to 900,000 shares of Common Stock by the Company to Allen & Company Incorporated in partial satisfaction of its fee in connection with the issuance referred to in clause (e) above, (g) the issuance of any shares of the Company's Series E Junior Convertible Preferred Stock in connection with the Company's acquisition of IFS of New Jersey, Inc., (h) the issuance and the exercise of this Warrant and/or the Other Warrant, (i) the grant of additional warrants to the holder of the Other Warrant in the event of an anti-dilution adjustment pursuant to Section 5 of the Other Warrant, and (j) the issuance of any "Equity Securities" (as defined in Section 7 of the Certificate of Designations) of the Company, the proceeds of which are used to the extent required or permitted by Section 7 of the Certificate of Designations. View More