Common use of Excluded Stock Clause in Contracts

Excluded Stock. Excluded Stock" shall mean (A) shares of Common Stock issued or reserved for issuance by the Company as a stock dividend payable in shares of Common Stock, or upon any subdivision or split-up of the outstanding shares of Common Stock or Preferred Stock, or upon conversion or exercise of any securities of the Company issued pursuant to the Securities Purchase Agreements; (B) up to 3,000,000 shares of Common Stock to be issued or reserved for issuance to employees, consultants, officers or directors of the Company pursuant to the Company's 1999 Stock Compensation Program, provided the exercise price for any options is at least equal to the fair market value of the Common Stock at the time the option was granted and the sales price for any shares of Common Stock issued under such plan is at least equal to the fair market value of the Common Stock at the time the shares are sold other than pursuant to the exercise of an option under such a plan; (C) shares of Common Stock or options or warrants for shares of Common Stock issued or reserved for issuance by the Company pursuant to the acquisition of stock or assets of an unaffiliated Person, provided that the consideration received by the Company for such shares of Common Stock shall be at least equal to the fair market value of the Common Stock at the time of such acquisition and the aggregate number of shares of Common Stock issued under this clause (C) and clause (D) below shall not exceed 1,000,000 shares; (D) shares of Common Stock or options or warrants for shares of Common Stock issued or reserved for issuance by the Company to equipment lessors, banks, financial institutions or similar entities in connection with commercial credit arrangements, equipment financing or similar transactions, provided that the aggregate number of shares of Common Stock issued under this clause (D) and clause (C) above shall not exceed 1,000,000 shares; (E) shares of Common Stock issued or reserved for issuance by the Company as a dividend or other distribution in connection with which an adjustment to the Exercise Price is made pursuant to Section 5(a)(iv) or (v); (F) issuance of securities in a public offering, provided that such offering is made pursuant to a firm underwriting agreement and the net proceeds to the Company are at least $15 million; and (G) shares of Common Stock issued pursuant to currently outstanding options, warrants, notes, or other rights to acquire securities of the Company which were issued or authorized to be issued as of the date hereof. All shares of Excluded Stock which the Company has reserved for issuance shall be deemed to be outstanding for all purposes of computations under Section 5(a).

Excluded Stock. Excluded Stock" shall mean (A) shares of Common Stock issued or reserved for issuance by the Company as a stock dividend payable in shares of Common Stock, or upon any subdivision or split-up of the outstanding shares of Common Stock or Preferred Stock, or upon conversion or exercise of any securities of the Company issued pursuant to the Securities Purchase AgreementsAgreement; (B) up to 3,000,000 shares of Common Stock to be issued or reserved for issuance to employees, consultants, officers or directors of the Company pursuant to the Company's 1999 Stock Compensation Program, provided the exercise price for any options is at least equal to the fair market value of the Common Stock at the time the option was granted and the sales price for any shares of Common Stock issued under such plan is at least equal to the fair market value of the Common Stock at the time the shares are sold other than pursuant to the exercise of an option under such a plan; (C) shares of Common Stock or options or warrants for shares of Common Stock issued or reserved for issuance by the Company pursuant to the acquisition of stock or assets of an unaffiliated Person, provided that the consideration received by the Company for such shares of Common Stock shall be at least equal to the fair market value of the Common Stock at the time of such acquisition and the aggregate number of shares of Common Stock issued under this clause (C) and clause (D) below shall not exceed 1,000,000 shares; (D) shares of Common Stock or options or warrants for shares of Common Stock issued or reserved for issuance by the Company to equipment lessors, banks, financial institutions or similar entities in connection with commercial credit arrangements, equipment financing or similar transactions, provided that the aggregate number of shares of Common Stock issued under this clause (D) and clause (C) above shall not exceed 1,000,000 shares; (E) shares of Common Stock issued or reserved for issuance by the Company as a dividend or other distribution in connection with which an adjustment to the Exercise Price is made pursuant to Section 5(a)(iv) or (v); (F) issuance of securities in a public offering, provided that such offering is made pursuant to a firm underwriting agreement and the net proceeds to the Company are at least $15 million; and (G) shares of Common Stock issued pursuant to currently outstanding options, warrants, notes, or other rights to acquire securities of the Company which were issued or authorized to be issued as of the date hereof. All shares of Excluded Stock which the Company has reserved for issuance shall be deemed to be outstanding for all purposes of computations under Section 5(a).

Excluded Stock. Excluded Stock" shall mean (A) shares of Common Stock issued or reserved for issuance by the Company as a stock dividend payable in shares of Common Stock, or upon any subdivision or split-up of the outstanding shares of Common Stock or Preferred Stock, or upon conversion or exercise of any securities of the Company issued pursuant to the Securities Purchase Agreements; (B) up to 3,000,000 shares of Common Stock agreed to be issued or reserved for issuance to employees, consultants, officers or directors of the Company pursuant to the Company's 1999 Stock Compensation Program, provided the exercise price for any options is at least equal to the fair market value of the Common Stock at the time the option was granted and the sales price for any shares of Common Stock issued under such plan is at least equal to the fair market value of the Common Stock at the time the shares are sold other than pursuant to the exercise of an option under such a plan; (C) shares of Common Stock or options or warrants for shares of Common Stock issued or reserved for issuance by the Company (A) under options, warrants, or other securities convertible or exercisable into Common Stock (whether pursuant to the acquisition of a stock option plan or assets of an unaffiliated Personotherwise), provided that the consideration received by same are issued to officers, directors or employees of the Company for such shares of Common Stock shall be at least equal to the fair market value of the Common Stock at the time of such acquisition and provided that the aggregate number of shares of Common Stock issued or issuable under this clause (CA) and clause (D) below shall not exceed 1,000,000 shares; (D) 10% of the Company's issued and outstanding shares of Common Stock Stock, (B) pursuant to anti-dilution provisions or options rights with respect to any other presently issued and outstanding securities of the Company convertible into, exchangeable for, or giving the holder thereof the option or right to purchase shares of Common Stock, (C) pursuant to warrants for to purchase 1,111,100 shares of Common Stock issued under the Purchase Agreement dated as of December 19,1994, (D) pursuant to up to 950,000 warrants issued to GTI Partners LLC pursuant to the Consulting Agreement dated May 13, 1998, and pursuant up to 10,000,000 warrants to be issued to Ghulam Bombaywala, both as authorized by the Board of Directors of thx Xxxxxxx xx Xxx 1, 1998, or (E) pursuant to a stock dividend, subdivision or split-up covered by clause (iv) of this Section 3.1(a). "Additional Excluded Stock" shall mean shares of Common Stock (other than Excluded Stock) issued or reserved or agreed to be reserved for issuance by the Company to equipment lessorswhether directly or under options, bankswarrants, financial institutions or similar entities in connection with commercial credit arrangements, equipment financing other securities convertible or similar transactionsexercisable into Common Stock, provided that the aggregate number of shares of Common Stock issued or issuable under this clause (D) and clause (C) above shall not exceed 1,000,000 shares; (E) shares of Common Stock issued or reserved for issuance by the Company as a dividend or other distribution in connection with which an adjustment to the Exercise Price is made pursuant to Section 5(a)(iv) or (v); (F) issuance of securities in a public offering, provided that such offering is made pursuant to a firm underwriting agreement and the net proceeds to the Company are at least $15 million; and (G) shares of Common Stock issued pursuant to currently outstanding options, warrants, notes, or other rights to acquire convertible securities shall not exceed 5% of the Company which were Company's issued or authorized to be issued as of the date hereof. All and outstanding shares of Excluded Stock which the Company has reserved for issuance shall be deemed to be outstanding for all purposes of computations under Section 5(a)Common Stock.

Excluded Stock. Excluded Stock" shall mean (A1) shares of Common Stock issued or reserved for issuance by the Company as a stock dividend payable in shares of Common Stock, or upon any subdivision or split-up of the outstanding shares of Common Stock or Preferred Stockpreferred stock, or upon conversion or exercise of any securities shares of currently outstanding shares of preferred stock or currently outstanding warrants; (2) the issuance of up to 300,000 shares of Common Stock to be issued or reserved for issuance to employees, consultants, officers or directors of the Company issued pursuant to the Securities Purchase Agreements; (B) Company's 1999 Stock Compensation Program and up to 3,000,000 shares of Common Stock to be issued or reserved for issuance to employees, consultants, officers or directors of the Company pursuant to the Company's 1999 2002 Stock Compensation Program, provided the exercise price for any options is at least equal to the fair market value of the Common Stock at the time the option was granted and the sales price for any shares of Common Stock issued under such plan is at least equal to the fair market value of the Common Stock at the time the shares are sold other than pursuant to the exercise of an option under such a plan; (C3) shares of Common Stock or options or warrants for shares of Common Stock issued or reserved for issuance by the Company pursuant to the acquisition of stock or assets of an unaffiliated Person, provided that the consideration received by the Company for such shares of Common Stock shall be at least equal to the fair market value of the Common Stock at the time of such acquisition and the aggregate number of shares of Common Stock issued under this clause (C3) and clause (D4) below shall not exceed 1,000,000 shares; (D4) shares of Common Stock or options or warrants for shares of Common Stock issued or reserved for issuance by the Company to equipment lessors, banks, financial institutions or similar entities in connection with commercial credit arrangements, equipment financing or similar transactions, provided that the aggregate number of shares of Common Stock issued under this clause (D4) and clause (C3) above shall not exceed 1,000,000 shares; (E5) shares of Common Stock issued or reserved for issuance by the Company as a dividend or other distribution in connection with which an adjustment to the Exercise Conversion Price is made pursuant to Section 5(a)(ivclause (ii) or (viii); (F6) issuance of securities in a public offeringoffering in which all of the Company's Series A Preferred Stock and Series AA-2 Preferred Stock will be converted, provided that such offering is made pursuant to a firm underwriting agreement and the net proceeds to the Company are at least $15 million; and (G7) shares of Common Stock issued pursuant to currently outstanding options, warrants, notes, convertible securities or other rights to acquire securities of the Company which were issued or authorized to be issued outstanding as of the date hereofdate. All shares of Excluded Stock which the Company has reserved for issuance shall be deemed to be outstanding for all purposes of computations under Section 5(a)this paragraph 3.