Common use of Definition of New Securities Clause in Contracts

Definition of New Securities. New Securities" shall mean any ---------------------------- Common Stock or any Preferred Stock of the Corporation, whether or not now authorized, and any rights, options, or warrants to purchase said Common Stock or Preferred Stock, and securities of any type whatsoever that are, or may become, convertible into or exchangeable for Common Stock or Preferred Stock; provided, however, that "New Securities" does not include (i) securities issuable upon exercise of the Series D Warrants or upon conversion of or with respect to the outstanding Preferred Stock or Series D Warrant shares or upon conversion of or with respect to any other Preferred Stock issued after the date of this Agreement and to which the Investors have either exercised or affirmatively waived in writing their rights of first offer as set forth in this Section 9; (ii) securities offered to the public pursuant to a registration statement filed under the Securities Act in connection with any public offering; (iii) securities issued as consideration in connection with the acquisition of another corporation by the Corporation by merger, purchase of substantially all of the assets, or otherwise; (iv) shares of the Corporation's Common Stock (or related options or warrants) issued to employees, officers, directors, consultants, or other persons performing services for the Corporation pursuant to any stock offering, plan, or arrangement approved by the Board of Directors of the Corporation; (v) securities issued pursuant to or in connection with any corporate partnership, joint venture or licensing arrangement with a non- affiliate or in connection with an unaffiliated equipment lease financing or bank debt into which the Corporation may enter; (vi) shares of the Corporation's Common Stock or Preferred Stock issued in connection with any stock split, stock dividend, or recapitalization by the Corporation; or (vii) securities issued upon exercise or conversion of any New Securities.

Definition of New Securities. New Securities" shall mean any ---------------------------- Common Stock or any Preferred Stock -------------- capital stock of the Corporation, Company whether now authorized or not now authorizednot, and any rights, options, options or warrants to purchase said Common Stock or Preferred Stockcapital stock, and securities of any type whatsoever that are, or may become, become convertible into or exchangeable for Common Stock capital stock, issued on or Preferred Stockafter the date hereof; provided, however, provided that the term "New Securities" does -------- not include (ia) securities purchased under this Agreement or the shares of Common Stock issued or issuable upon exercise of the Series D Warrants or upon conversion of or with respect to any series of the outstanding Preferred Stock, (b) Common Stock issued as a stock dividend to holders of Common Stock or Series D Warrant upon any stock split, subdivision or combination of shares or upon conversion of or with respect Common Stock, (c) up to any other Preferred 3,926,908 shares of Common Stock issued after the date of this Agreement and to which the Investors have either exercised or affirmatively waived in writing their rights of first offer as set forth in this Section 9; (ii) securities offered to the public pursuant to a registration statement filed under the Securities Act in connection with any public offering; (iii) securities issued as consideration in connection with the acquisition of another corporation by the Corporation by merger, purchase of substantially all of the assets, or otherwise; (iv) shares of the Corporation's Common Stock (or related options or warrants) issued reserved for issuance to employees, officers, directors, consultantsofficers of directors of, or other persons performing services for consultants to, the Corporation Corporation, pursuant to any stock offeringoption plan or agreement, stock purchase plan or agreement, stock ownership plan, consulting agreement, or arrangement other options, issuances, warrants, agreements or plans approved by a majority of the Board of Directors (which approval includes the approval of a majority of the directors designated and elected by the holders of the Preferred Stock), (iii) warrants or other securities junior to the Series A-E Preferred Stock (as defined in the Fourth Restated Certificate of Incorporation) that are issued in a bank lending or equipment leasing transaction approved by the Corporation; 's Board of Directors (vwhich approval includes the approval of a majority of the directors designated and elected by the holders of the Preferred Stock), (iv) securities issued pursuant to a strategic alliance or in connection with any corporate partnership, joint venture partnership or licensing arrangement with a non- affiliate or in connection with an unaffiliated equipment lease financing or bank debt into acquisition transaction approved by the Corporation's Board of Directors and pursuant to which the Corporation may enter; acquires not less than 51% of the voting power of the acquisition target (which approval includes the approval of a majority of the directors designated and elected by the holders of the Preferred Stock), (v) 460,000 shares of Series X Preferred Stock (including any rights, warrants or options to purchase Series X Preferred Stock), and (vi) any shares of the Corporation's Common Stock any class or Preferred Stock issued series of capital stock (including warrants, options, subscriptions or purchase rights with respect thereto) approved in connection with any stock split, stock dividend, or recapitalization writing as being excepted hereunder by the Corporation; or holders of fifty-one percent (vii51%) securities issued upon exercise or conversion of any New Securitiesall then outstanding shares of Series A-E Preferred Stock, voting together as a single class, and by the holders of seventy-six percent (76%) of all then outstanding shares of Series E Preferred Stock, voting together as a separate series.

Definition of New Securities. Except as set forth below, "New ---------------------------- --- Securities" shall mean any ---------------------------- shares of capital stock of the Company, including ---------- Common Stock or any and Preferred Stock of the CorporationStock, whether authorized or not now authorizednot, and any rights, options, options or warrants to purchase said shares of Common Stock or Preferred Stock, and securities of any type whatsoever that are, or may become, convertible into or exchangeable for said shares of Common Stock or Preferred Stock; provided. Notwithstanding the foregoing, however, that "New --- Securities" does not include (i) securities issuable upon exercise of the Series D Warrants Preferred Shares or upon conversion of or with respect to the outstanding Preferred Stock or Series D Warrant shares or upon conversion of or with respect to any other Preferred Stock issued after the date of this Agreement and to which the Investors have either exercised or affirmatively waived in writing their rights of first offer as set forth in this Section 9; Conversion Shares, ---------- (ii) securities offered to the public generally pursuant to a registration statement filed under the Securities Act in connection with any public offering; Act, (iii) securities issued as consideration in connection with pursuant to the acquisition of patents or other intellectual property or assets of another corporation, or the acquisition of another corporation by the Corporation this corporation by merger, purchase of all or substantially all of the assetsassets or shares or other reorganization or strategic transaction whereby this corporation or its stockholders own not less than a majority of the voting power of the surviving or successor corporation, or otherwise; (iv) shares of the CorporationCompany's Common Stock (or related options convertible into or warrants) exercisable for such Common Stock issued to employees, officersofficers and directors of, directors, and consultants, or other persons performing services for customers, and vendors to, the Corporation Company, pursuant to any stock offering, plan, or arrangement approved by the Board of Directors of the Corporation; Company, (v) securities issued pursuant to or in connection with any corporate partnership, joint venture or licensing arrangement with a non- affiliate or in connection with an unaffiliated equipment lease financing or bank debt into which the Corporation may enter; (vi) shares of the CorporationCompany's Common Stock or Preferred related options convertible into or exercisable for such Common Stock issued to banks, commercial lenders, lessors and other financial institutions in connection with the borrowing of money or the leasing of equipment by the Company, (vi) stock issued pursuant to any rights or agreements, including, without limitation, convertible securities, options and warrants, provided that the Company shall have complied with the rights of participation established by this Section 2.1 with respect to the initial sale or grant by the Company of such rights or agreements, or (vii) stock issued in connection with any stock split, stock dividend, dividend or recapitalization by the Corporation; or (vii) securities issued upon exercise or conversion of any New SecuritiesCompany.

Definition of New Securities. Except as set forth below, "New ---------------------------- Securities" shall mean any ---------------------------- shares of capital stock of the Company, including Common Stock or any and Preferred Stock of the CorporationStock, whether authorized or not now authorizednot, and any rights, options, options or warrants to purchase said shares of Common Stock or Preferred Stock, and securities of any type whatsoever that are, or may become, convertible into or exchangeable for said shares of Common Stock or Preferred Stock; provided. Notwithstanding the foregoing, however, that "New Securities" does not include (i) securities issuable upon exercise of the Common Shares or the Series D Warrants or upon conversion of or with respect to the outstanding A Preferred Stock, Series B Preferred Stock or Series D Warrant C Preferred Stock or any shares or of Common Stock issued upon conversion of or with respect to any other Preferred Stock issued after the date of this Agreement and to which the Investors have either exercised or affirmatively waived in writing their rights of first offer as set forth in this Section 9; thereof, (ii) securities offered to the public generally pursuant to a registration statement filed under the Securities Act in connection with any public offering; Act, (iii) securities issued as consideration in connection with pursuant to the acquisition of another corporation by the Corporation Company by merger, purchase of substantially all of the assetsassets or shares or other reorganization whereby the Company or its shareholders own not less than a majority of the voting power of the surviving or successor corporation, or otherwise; (iv) shares of the CorporationCompany's Common Stock (or related options or warrants) warrants convertible into or exercisable for such Common Stock issued to employees, officersofficers and directors of, directorsand consultants to, consultantsthe Company, or other persons performing services for the Corporation pursuant to any stock offering, plan, or arrangement approved by the Board of Directors of the Corporation; Company, (v) securities issued pursuant to or in connection with any corporate partnership, joint venture or licensing arrangement with a non- affiliate or in connection with an unaffiliated equipment lease financing or bank debt into which the Corporation may enter; (vi) shares of the CorporationCompany's Common Stock or Preferred related options convertible into or exercisable for such Common Stock issued to banks, commercial lenders, lessors and other financial institutions in connection with the borrowing of money or the leasing of equipment by the Company, (vi) stock issued pursuant to any rights or agreements, including, without limitation, convertible securities, options and warrants, provided that the Company shall have complied with the rights of participation established by this Section 3.1 with respect to the initial sale or grant by the Company of such rights or agreements, or (vii) stock issued in connection with any stock split, stock dividend, dividend or recapitalization by the Corporation; or (vii) securities issued upon exercise or conversion of any New SecuritiesCompany.