Common use of Excluded Transactions Clause in Contracts

Excluded Transactions. Notwithstanding the foregoing, Sections ---------------------- -------- 4(c), (d) or 4(e) above shall not apply to: (i) the Company's offering of ---- --- ---- up to 750,000 shares of Series A Convertible Preferred Stock, with related Series A Warrants and Series B Warrants, and up to 76,201 shares of Series B Convertible Preferred Stock and Series C Convertible Preferred Stock, in the aggregate, pursuant to the Securities Purchase and Share Exchange Agreement of even date herewith (the "OFFERING"); (ii) shares of Common Stock issued or deemed issued to employees or directors of, or consultants to, the Company or any of its subsidiaries for services rendered pursuant to a plan, agreement, or arrangement approved by the Board of Directors of the Company (including 5,000 shares of Common Stock per month issued or issuable to a third party in connection with the provision of guarantees for certain obligations of the Company); (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding on the date hereof; (iv) shares of Common Stock issued in connection with any stock split or stock dividend; (v) the issuance of Series A Convertible Preferred Stock, Series B Convertible Preferred Stock, Series C Convertible Preferred Stock, Series A Warrants, Series B Warrants, Series C Warrants or Series D Warrant in connection with the Offering; (vi) the issuance of shares of Common Stock upon conversion or exercise, as applicable, of the Series A Convertible Preferred Stock, Series B Convertible Preferred Stock, Series C Convertible Preferred Stock, Series A Warrants, Series B Warrants, Series C Warrants or Series D Warrant in connection with the Offering, in each case, provided the issuance is pursuant to the terms of such option or convertible security; (vii) warrants issued to Midtown Partners & Co., LLC, as placement agent in connection with Offering, and shares of Common Stock issued in connection with the exercise thereof; (viii) shares of Common Stock issued or issuable in connection with a bona fide joint venture or business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock, or otherwise; provided that any such issuance is approved by the Board of Directors, and, at the time of such issuance, the aggregate of that issuance and similar issuances in the then preceding twelve (12) month period shall not exceed ten percent (10%) of the then-outstanding Common Stock of the Company (assuming full conversion and exercise of all convertible and exercisable securities); (ix) the Reverse Merger (as defined in the Certificate of Designations of the Series A Convertible Preferred Stock); and (x) Series A Warrants issued pursuant to Section 2 of the Investor Rights Agreement of even date herewith (the "INVESTOR RIGHTS AGREEMENT")(collectively, the "EXEMPT SECURITIES").

Excluded Transactions. Notwithstanding the foregoing, Sections ---------------------- -------- 4(c), (d) or 4(e) above The provisions of this Section 5 shall not apply to: (i) to any of the following types of Issuances by the Company or any Subsidiary of the Company's offering : (a) any Issuance of ---- --- ---- up to 750,000 shares of Series A Convertible Preferred Stock, with related Series A Warrants and Series B Warrants, and up to 76,201 shares of Series B Convertible Preferred Stock and Series C Convertible Preferred Stock, in the aggregate, pursuant to the Securities Purchase and Share Exchange Agreement of even date herewith (the "OFFERING"); (ii) shares of Common Stock (i) upon the exercise or conversion of any Convertible Securities (A) outstanding as of the Closing Date (other than Issuances of Common Stock upon exercise of Public Warrants not held by an Investor) or (B) issued in compliance with this Section 5 and (ii) pursuant to Section 5; (b) any Issuance of shares of Common Stock upon the conversion of any shares of Non-Voting Common Stock; (c) any Issuance of shares of Common Stock pursuant to a Public Offering or deemed issued any Issuance pursuant to employees Rule 144A under the Securities Act; (d) any Issuance of Subject Securities in connection with the Closing or the indemnification obligations of the Company under Article VIII of the Exchange Agreement; (e) any Issuance of Subject Securities in connection with any stock split or stock dividend or upon any subdivision or combination that is approved by the Board; (f) any Issuance of Subject Securities representing in the aggregate (on an as-converted basis) less than five percent (5%) of the then outstanding shares of Common Stock of the Company to one or more bona fide lenders that are not Affiliates of an Investor in connection with any present or future borrowing, line of credit, guarantee, leasing or similar financing arrangement approved by the Board; (g) subject to any required approval of the Requisite Majority under Section 6.2, any Issuance of Subject Securities relating to any acquisition or merger after the Closing Date involving the Company or any of its Subsidiaries that is approved by the Board; (h) subject to any required approval of the Requisite Majority under Section 6.2, any Issuance of any shares of Common Stock (or Options) to employees, directors or officers of, or consultants to, the Company or any Subsidiary of its subsidiaries for services rendered the Company pursuant to a any plan, agreement, agreement or arrangement approved by the Board Board; and (i) any Issuance of Directors of Subject Securities to the Company or any direct or indirect wholly-owned (including 5,000 shares of Common Stock per month issued for this purpose, disregarding any director qualifying or issuable to a third party in connection with the provision of guarantees for certain obligations similar shares) Subsidiary of the Company); (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding on the date hereof; (iv) shares of Common Stock issued in connection with any stock split or stock dividend; (v) the issuance of Series A Convertible Preferred Stock, Series B Convertible Preferred Stock, Series C Convertible Preferred Stock, Series A Warrants, Series B Warrants, Series C Warrants or Series D Warrant in connection with the Offering; (vi) the issuance of shares of Common Stock upon conversion or exercise, as applicable, of the Series A Convertible Preferred Stock, Series B Convertible Preferred Stock, Series C Convertible Preferred Stock, Series A Warrants, Series B Warrants, Series C Warrants or Series D Warrant in connection with the Offering, in each case, provided the issuance is pursuant to the terms of such option or convertible security; (vii) warrants issued to Midtown Partners & Co., LLC, as placement agent in connection with Offering, and shares of Common Stock issued in connection with the exercise thereof; (viii) shares of Common Stock issued or issuable in connection with a bona fide joint venture or business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock, or otherwise; provided that any such issuance is approved by the Board of Directors, and, at the time of such issuance, the aggregate of that issuance and similar issuances in the then preceding twelve (12) month period shall not exceed ten percent (10%) of the then-outstanding Common Stock of the Company (assuming full conversion and exercise of all convertible and exercisable securities); (ix) the Reverse Merger (as defined in the Certificate of Designations of the Series A Convertible Preferred Stock); and (x) Series A Warrants issued pursuant to Section 2 of the Investor Rights Agreement of even date herewith (the "INVESTOR RIGHTS AGREEMENT")(collectively, the "EXEMPT SECURITIES").

Excluded Transactions. Notwithstanding the foregoing, Sections ---------------------- -------- 4(c), (d4(d) or 4(e) above shall not apply to: (i) the Company's ’s offering of ---- --- ---- up to 750,000 1,500,000 shares of Series A Convertible Preferred Stock, with related Series A Warrants and Series B Warrants, and up to 76,201 shares of Series B Convertible Preferred Stock and Series C Convertible Preferred Stock, in the aggregate, Warrants pursuant to the Securities Purchase and Share Exchange Agreement of even date herewith (the "“OFFERING"”); (ii) shares of Common Stock issued or deemed issued to employees or directors of, or consultants to, the Company or any of its subsidiaries for services rendered pursuant to a plan, agreement, or arrangement approved by the Board of Directors of the Company (including 5,000 shares of Common Stock per month issued or issuable to a third party in connection with the provision of guarantees for certain obligations of the Company); (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding on the date hereof; (iv) shares of Common Stock issued in connection with any stock split or stock dividend; (v) the issuance of Series A Convertible Preferred Stock, Series B Convertible Preferred Stock, Series C Convertible Preferred Stock, Series A Warrants, Series B Warrants, Series C Warrants or Series D Warrant B Warrants in connection with the Offering; (vi) the issuance of shares of Common Stock upon conversion or exercise, as applicable, of the Series A Convertible Preferred Stock, Series B Convertible Preferred Stock, Series C Convertible Preferred Stock, Series A Warrants, Series B Warrants, Series C Warrants or Series D Warrant B Warrants in connection with the Offering, in each case, provided the issuance is pursuant to the terms of such option or convertible security; (vii) warrants issued to Midtown Partners & Co., LLC, as placement agent in connection with Offering, and shares of Common Stock issued in connection with the exercise thereof; (viii) shares of Common Stock issued or issuable in connection with a bona fide joint venture or business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock, or otherwise; provided that any such issuance is approved by the Board of Directors, and, at the time of such issuance, the aggregate of that issuance and similar issuances in the then preceding twelve (12) month period shall not exceed ten percent (10%) of the then-outstanding Common Stock of the Company (assuming full conversion and exercise of all convertible and exercisable securities); (ix) the Reverse Merger (as defined in the Certificate of Designations of the Series A Convertible Preferred Stock); and (x) Series A Warrants and Series B Warrants issued pursuant to Section 2 of the Investor Rights Agreement of even date herewith (the "“INVESTOR RIGHTS AGREEMENT")(collectivelyAGREEMENT”)(collectively, the "“EXEMPT SECURITIES"”).

Excluded Transactions. Notwithstanding the foregoingpreceding provisions of this Section 6, Sections ---------------------- -------- 4(c)the preceding provisions of this Section 6 shall not restrict: (a) Any Issuance of Common Stock upon the exercise or conversion of any Common Stock, Options or Convertible Securities outstanding on the date hereof or Issued after the date hereof in compliance with the provisions of this Section 6; (b) Any Issuance of Subject Securities in connection with the acquisition by the Company or its subsidiaries of the business, assets or stock of another entity; (c) Any Issuance of Subject Securities to employees, directors or consultants of the Company or its subsidiaries; (d) or 4(eAny Issuance of Subject Securities in connection with the placement of debt; (e) above shall not apply to: Any Issuance of Common Stock in connection with a Public Offering; (f) The Issuance of Series C Shares to the Series C Investors at the Closing and the Subsequent Closings (as defined in the Purchase Agreement); (g) The Issuance of Series B Preferred upon exchange of any of (i) the Company's offering of ---- --- ---- up to 750,000 shares of Series A 8% Convertible Preferred Stock, with related Series A Warrants and Series B Warrants, and up to 76,201 shares of Series B Convertible Preferred Stock and Series C Convertible Preferred Stock, in the aggregate, pursuant to the Securities Purchase and Share Exchange Agreement of even date herewith (the "OFFERING"); (ii) Subordinated Promissory Notes currently convertible into shares of Common Stock issued or deemed issued to employees or directors ofat a per share price of $1.8207, or consultants to, (ii) the Company or any of its subsidiaries for services rendered pursuant to a plan, agreement, or arrangement approved by the Board of Directors of the Company (including 5,000 Company's Series A 8% Convertible Subordinated Promissory Notes currently convertible into shares of Common Stock at a per month issued or issuable to a third party in connection with the provision share price of guarantees for certain obligations of the Company); $2.0318, (iii) the issuance of securities pursuant to the conversion or exercise of Company's Series B 8% Convertible Subordinated Notes currently convertible or exercisable securities outstanding on the date hereof; (iv) into shares of Common Stock issued in connection with at a per share price of $2.0822 (collectively, all such notes, the "Notes"), or (iv) any stock split interest that has or stock dividend; will have accrued on such converted Notes; (vh) the issuance The Issuance of Series A Convertible Preferred Stock, Series B Convertible Preferred Stock, Series C Convertible Preferred Stock, Series A Warrants, Series B Warrants, Series C Warrants or Series D Warrant in connection with the Offering; (vi) the issuance of shares of Common Stock upon conversion or exercise, as applicable, of the Series A Convertible Preferred Stock, Series B Convertible Preferred Stock, Series C Convertible Preferred Stock, Series A Warrants, Series B Warrants, Series C Warrants or Series D Warrant in connection with the Offering, in each case, provided the issuance is Subject Securities pursuant to the terms of such option the Agreement and Plan of Merger, dated as of June 22, 1998, by and among the Company, ▇▇▇▇ Communications, Inc. and One Call Telecom, Inc.; (i) The Issuance of warrants or convertible security; Common Stock pursuant to the terms of the Stock Purchase Warrant Agreement, dated as of July 19, 1999, by and among the Company and General Electric Capital Corporation; (viij) warrants issued to Midtown Partners & Co., LLC, as placement agent in connection with Offering, and shares The Issuance of Common Stock issued in connection with pursuant to the exercise thereof; terms of the Stock Purchase Warrant Agreement, dated as of April 12, 1999, by and among the Company and Imperial Bank; (viiik) The Issuance of Series A Preferred upon exchange of shares of the Company's Class B Common Stock; (l) The Issuance of Common Stock issued by reason of a dividend, stock split, split-up or issuable in connection with a bona fide joint venture or business acquisition other distribution on Common Stock; or (m) The Issuance of or other Subject Securities upon the written consent of the holders of 66 2/3% of the Shares held by the CompanyParticipation Offerees (following a written notice to such Participation Offerees requesting such exclusion, whether by mergerwhich notice shall include the type of security to be issued, consolidationthe number of shares of the security to be issued, sale of assets, sale or exchange of stock, or otherwise; provided that any such issuance is approved and the consideration to be received by the Board of Directors, and, at the time of Company for such issuance, the aggregate of that issuance and similar issuances in the then preceding twelve (12) month period shall not exceed ten percent (10%) of the then-outstanding Common Stock of the Company (assuming full conversion and exercise of all convertible and exercisable securitiessecurity(ies); (ix) the Reverse Merger (as defined in the Certificate of Designations of the Series A Convertible Preferred Stock); and (x) Series A Warrants issued pursuant to Section 2 of the Investor Rights Agreement of even date herewith (the "INVESTOR RIGHTS AGREEMENT")(collectively, the "EXEMPT SECURITIES").

Excluded Transactions. Notwithstanding the foregoing, Sections ---------------------- -------- 4(c), (d) or 4(e) above shall not apply to: (i) the Company's offering of ---- --- --- ---- up to 750,000 shares of Series A Convertible Preferred Stock, with related Series A Warrants and Series B Warrants, and up to 76,201 shares of Series B Convertible Preferred Stock and Series C Convertible Preferred Stock, in the aggregate, pursuant to the Securities Purchase and Share Exchange Agreement of even date herewith (the "OFFERING"); (ii) shares of Common Stock issued or deemed issued to employees or directors of, or consultants to, the Company or any of its subsidiaries for services rendered pursuant to a plan, agreement, or arrangement approved by the Board of Directors of the Company (including 5,000 shares of Common Stock per month issued or issuable to a third party in connection with the provision of guarantees for certain obligations of the Company); (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding on the date hereof; (iv) shares of Common Stock issued in connection with any stock split or stock dividend; (v) the issuance of Series A Convertible Preferred Stock, Series B Convertible Preferred Stock, Series C Convertible Preferred Stock, Series A Warrants, Series B Warrants, Series C Warrants or Series D Warrant in connection with the Offering; (vi) the issuance of shares of Common Stock upon conversion or exercise, as applicable, of the Series A Convertible Preferred Stock, Series B Convertible Preferred Stock, Series C Convertible Preferred Stock, Series A Warrants, Series B Warrants, Series C Warrants or Series D Warrant in connection with the Offering, in each case, provided the issuance is pursuant to the terms of such option or convertible security; (vii) warrants issued to Midtown Partners & Co., LLC, as placement agent in connection with Offering, and shares of Common Stock issued in connection with the exercise thereof; (viii) shares of Common Stock issued or issuable in connection with a bona fide joint venture or business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock, or otherwise; provided that any such issuance is approved by the Board of Directors, and, at the time of such issuance, the aggregate of that issuance and similar issuances in the then preceding twelve (12) month period shall not exceed ten percent (10%) of the then-outstanding Common Stock of the Company (assuming full conversion and exercise of all convertible and exercisable securities); (ix) the Reverse Merger (as defined in the Certificate of Designations of the Series A Convertible Preferred Stock); and (x) Series A Warrants issued pursuant to Section 2 of the Investor Rights Agreement of even date herewith (the "INVESTOR RIGHTS AGREEMENT")(collectively, the "EXEMPT SECURITIES").