1.3.
7.5
"BOARD" MEANS THE BOARD OF DIRECTORS OF THE COMPANY.
7.6
"BUSINESS DAY" MEANS A DAY MONDAY THROUGH FRIDAY ON WHICH BANKS ARE
GENERALLY OPEN FOR BUSINESS IN BOSTON, MASSACHUSETTS.
7.7
"BYLAWS" HAS THE MEANING SET FORTH IN SECTION 2.3.
12
7.8
"CERTIFICATE OF DESIGNATIONS" HAS THE MEANING SET FORTH IN
SECTION 5.3.
7.9
"CERTIFICATE OF INCORPORATION" HAS THE MEANING SET FORTH IN
SECTION 2.3.
7.10
"CERTIFICATION DATE" HAS THE MEANING SET FORTH IN SECTION 1.2.
7.11
"CLOSING" HAS THE MEANING SET FORTH IN SECTION 1.2.
7.12
"CLOSING DATE" HAS THE MEANING SET FORTH IN SECTION 1.2.
7.13
"COMMON STOCK" MEANS THE COMMON STOCK, PAR VALUE $.01 PER SHARE, OF
THE COMPANY.
7.14
"COMPANY" HAS THE MEANING SET FORTH IN THE PREAMBLE TO THIS
AGREEMENT.
7.15
"COMPANY MATERIAL ADVERSE EFFECT" MEANS A MATERIAL ADVERSE EFFECT ON
(A) THE BUSINESS, OPERATIONS, ASSETS, LIABILITIES OR CONDITION (FINANCIAL OR
OTHERWISE) OF THE COMPANY AND ITS SUBSIDIARIES, TAKEN AS A WHOLE, OR (B) THE
ABILITY OF THE COMPANY TO PERFORM IN ANY MATERIAL RESPECT ON A TIMELY BASIS ITS
OBLIGATIONS PURSUANT TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
7.16
"COMPANY SECURITIES" SHALL MEAN, AT ANY TIME, SHARES OF (I) COMMON
STOCK, (II) PREFERRED STOCK, AND (III) ANY OTHER EQUITY SECURITIES NOW OR
HEREAFTER ISSUED BY THE COMPANY, AND ANY OTHER SHARES OF STOCK ISSUED OR
ISSUABLE WITH RESPECT THERETO (WHETHER BY WAY OF A STOCK DIVIDEND, STOCK SPLIT
OR IN EXCHANGE FOR OR UPON CONVERSION OF SUCH SHARES OR OTHERWISE IN CONNECTION
WITH A COMBINATION OF SHARES, RECAPITALIZATION, MERGER, CONSOLIDATION OR OTHER
CORPORATE REORGANIZATION).
7.17
"COMPETITOR" MEANS ANY PERSON, OTHER THAN A PURCHASER PARTY, (I) FOR
WHICH THE DEVELOPMENT, MANUFACTURE AND/OR SALE OF FUEL CELLS ACCOUNTED FOR AT
LEAST 50% OF ITS REVENUES IN ITS MOST RECENT FULL FISCAL YEAR; (II) WITH REVENUE
EXCEEDING $5,000,000 IN ITS MOST RECENT FULL FISCAL YEAR AND WHICH SELLS FUEL
CELL PRODUCTS FOR USE IN FORKLIFT TRUCKS; (III) WITH REVENUE IN ITS MOST RECENT
FULL FISCAL YEAR ASSOCIATED WITH THE SALE OF FUEL CELL PRODUCTS EQUAL TO AT
LEAST 75% OF THE COMPANY'S REVENUE IN ITS MOST RECENT FULL FISCAL YEAR; OR (IV)
FOR WHICH AT LEAST 50% OF ITS REVENUE IN ITS MOST RECENT FULL FISCAL YEAR IS
ATTRIBUTABLE TO THE SALE OF EQUIPMENT TO THE MATERIAL HANDLING INDUSTRY;
PROVIDED, HOWEVER, THAT IN THE CASE OF A PROPOSED TRANSFER TO A COMPETITOR THAT
WOULD OTHERWISE BE PROHIBITED PURSUANT TO THIS SUBJECTION (IV), THE COMPANY WILL
NOT UNREASONABLY WITHHOLD CONSENT TO THE TRANSFER OF PURCHASER'S SHARES.
7.18
"CONTROL," WHEN USED WITH RESPECT TO ANY SPECIFIED PERSON, MEANS THE
POWER TO DIRECT THE MANAGEMENT AND POLICIES OF SUCH PERSON, DIRECTLY OR
INDIRECTLY, WHETHER THROUGH OWNERSHIP OF VOTING SECURITIES, BY CONTRACT OR
OTHERWISE; AND THE TERMS "CONTROLLING" AND "CONTROLLED" SHALL HAVE MEANINGS
CORRELATIVE TO THE FOREGOING.
7.19
"EQUITY INCENTIVE PLANS" MEANS ALL CURRENT AND FUTURE EQUITY
INCENTIVE PLANS OF THE COMPANY THAT ARE APPROVED BY THE BOARD, INCLUDING WITHOUT
LIMITATION, THE COMPANY'S 2011 STOCK OPTION AND INCENTIVE PLAN,