Excluded Securities Sample Clauses

Excluded Securities. No Securities that have been transferred by the Selling Vestar Holder or an Other Holder in a Transfer pursuant to the provisions of Section 3.3(a) (“Excluded Securities”) shall be subject again to the restrictions set forth in Section 3.3(a), nor shall any Securityholder holding Excluded Securities be entitled to exercise any rights as an Other Holder under Section 3.3(a) with respect to such Excluded Securities, and no Excluded Securities held by a Selling Vestar Holder or any Other Holder shall be counted in determining the respective participation rights of such Holders in a Transfer subject to Section 3.3(a).

Excluded Securities. The rights of first offer established by this Section 3 shall have no application to any of the following Equity Securities: (i) up to 100,441,177 shares of Common Stock, and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), issued to employees, officers, directors or strategic partners of, or consultants, advisors, lenders, vendors or lessors to, the Company or any of its subsidiaries pursuant to the Company's stock incentive plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors); (ii) [Intentionally Omitted]; (iii) any shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (iv) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (v) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreement.

Excluded Securities. The rights of first refusal in favor of Buyer established by this Section 1 and the rights of first refusal in favor of the Common Holders established by Section 2 shall have no application to any of the following Equity Securities: (a) shares of common stock (and/or options, warrants or other common stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary of the Company, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Company's Board of Directors, including the representative or representatives on the Board designated by Buyer; (b) any Equity Securities issued pursuant to any rights, agreements, options or warrants outstanding as of the date of this Agreement; and Equity Securities issued pursuant to any such rights, agreements, options or warrants granted after the date of this Agreement; provided that the rights of first refusal established by this Section 1 and Section 2 (if still in effect) applied with respect to the initial sale or grant by the Company of such rights, agreements, options or warrants; (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company;

Excluded Securities. The rights of first refusal established by this Section 4 shall have no application to any of the following Equity Securities: (a) up to 25,000,000 shares of Common Stock (the “Base Option Pool”) that is approved by the Company’s Board of Directors, issued after the original issue date of the Series A Preferred pursuant to such options, warrants or other rights to employees, officers or directors of, or consultants or advisors to, the Company or any subsidiary pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board for the primary purpose of soliciting or retaining their services (individually, an “Equity Incentive” and collectively, “Equity Incentives”); provided further, that for purposes of the Base Option Pool any unvested Common Stock repurchased by the Company pursuant to the terms of a restricted stock purchase agreement under which such Equity Incentive was issued and any Equity Incentive which expires unexercised (including, without limitation, Equity Incentives outstanding on the date hereof) may again be sold or granted under this Section 4.7(a) without counting another time against the limitations set forth above. (b) stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant .to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with or were inapplicable pursuant to any provision of this Section 4.7 with respect to the initial sale or grant by the Company of such rights or agreements; (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Directors; (d) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (e) shares of Common Stock issued upon conversion of shares of the Company’s Preferred Stock; (f) up to five percent (5%) of the fully diluted capitalization of the Company ( defined to include all issued and outstanding shares of capital stock, all shares issued or issuable upon exercise on conversion of all convertible securities, options, wan-ants, or other purchase . rights and all shares of capital stock reserved for future issuance) issued pursuant to any equipment loan or leasing arrangement,...

Excluded Securities. The rights of first refusal established by this Section 4 shall have no application to any of the following Equity Securities: (a) up to 5,084,877 shares of Common Stock and/or options, warrants or other Common Stock purchase rights, or such greater amount approved by the Board pursuant to Section 3.13, and the Common Stock issued pursuant to such options, warrants or other rights issued or to be issued to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors; (b) stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreements; (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination approved by two-thirds of the members of the Board of Directors; (d) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (e) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors, and Equity Securities issued in connection with that certain Note Purchase Agreement; (f) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act; (g) any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing, licensing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance of shares therein has been approved by two-thirds of the members of the Board of Directors; and (h) any Equity Securities issued by the Company pursuant to the terms of the Purchase Agreement.

Excluded Securities. For purposes hereof, the term “Excluded Securities” means Class B Shares (and Class A Shares for which such Class B Shares are convertible) issued to the Sponsor prior to the IPO, private placement warrants issued by the Company to the Sponsor or an affiliate thereof in connection with the IPO for $1.00 per warrant in an amount not to exceed two percent of the gross proceeds from the IPO plus $3,000,000 and which have the same exercise price as the Warrants (“Private Placement Warrants”), warrants issued upon the conversion of working capital loans to the Company to be made by the Sponsor or an affiliate thereof to finance transaction costs in connection with an intended initial Business Combination (up to $1,500,000 of which may be convertible at the option of the lender into warrants of the post-Business Combination entity having the same terms as the Private Placement Warrants at a price of $1.00 per warrant (the “Working Capital Loans”)), any securities issued by the Company as consideration to any seller in the Business Combination, any Class A Shares, Class B Shares (and Class A Shares for which such Class B Shares are convertible) and Forward Purchase Warrants issued pursuant to forward purchase contracts entered into prior to the IPO Closing with Forward Contract Parties.

Excluded Securities. For purposes hereof, the term “Excluded Securities” means Class B Shares (and Class A Shares into which such Class B Shares are convertible) issued to the Sponsor prior to the IPO, the private placement warrants sold to the Sponsor or its affiliates in connection with the IPO (the “Private Placement Warrants”), warrants issued upon the conversion of working capital loans to the Company to be made by the Sponsor or an affiliate thereof to finance transaction costs in connection with an intended initial Business Combination (up to $1,500,000 of which may be convertible at the option of the lender into warrants of the post-Business Combination entity having the same terms as the Private Placement Warrants at a price of $1.00 per warrant), any securities issued by the Company as consideration to any seller in the Business Combination, and any Class A Shares, Class B Shares (and Class A Shares into which such Class B Shares are convertible) and Forward Purchase Warrants issued pursuant to forward purchase contracts entered into prior to the IPO Closing with Forward Contract Parties.

Excluded Securities. For purposes hereof, the term “Excluded Securities” means any warrants issued upon the conversion of working capital loans to the Company to be made by the Sponsor or an affiliate thereof to finance transaction costs in connection with an intended initial Business Combination (up to $1,500,000 of which may be convertible at the option of the lender into warrants of the post-Business Combination entity having the same terms as the Private Placement Warrants at a price of $1.50 per warrant), and any securities issued by the Company as consideration to any seller in the Business Combination or in satisfaction for any amounts owed by or claims against the Company.

Excluded Securities. The rights of first offer established by this Section 5 shall have no application to any of the following Equity Securities: (a) shares of Common Stock (and/or options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors, including the representatives designated by the holders of the Shares but excluding the Founders; (b) stock issued pursuant to any rights or agreements outstanding as of the date of this Agreement, options, warrants (including the Nova Scotia, Harpeth and UA Warrants) and convertible promissory notes outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, provided, that, the rights of first offer established by this Section 5 applied with respect to the initial sale or grant by the Company of such rights or agreements; (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; (d) after the date hereof, any Equity Securities which in the aggregate exceed ten percent (10%) of the Company's outstanding capital stock on a fully diluted basis issued to a potential or existing customer or supplier or other strategic relationship or issued in connection with a credit facility or equipment lease transaction; (e) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (f) shares of Common Stock issued upon conversion of the Shares; (g) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act.