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), (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 foregoing, Sections ---------------------- -------- 4(c), (d4(f) --------------------- ------------- or 4(e4(h) 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 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), (d4(f) or 4(e---------------------- ------------- 4(h) 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), (d4(f) --------------------- ------------ or 4(e4(h) 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").