Exceptions to Adjustment Provisions. The provisions of this Section 5(h) will not be applicable to (1) any issuance for which an adjustment to the Conversion Price is provided under any other subclause of this Section 5(h), (2) any issuance of shares of Common Stock upon actual exercise, exchange or conversion of any Common Stock Derivative if the Conversion Price was fully and properly adjusted at the time such securities were issued or if no such adjustment was required hereunder at the time such securities were issued, (3) the issuance of additional shares of Series A Preferred or Series B Preferred at a per share price equal to or greater than the applicable Liquidation Preference or the issuance of shares of Common Stock upon conversion of outstanding shares of Series A Preferred or Series B Preferred, (4) the issuance of Common Stock Derivatives or shares of Common Stock to employees, directors or consultants of the Corporation or its subsidiaries pursuant to management or director incentive plans or stock compensation plans as in effect on or prior to the Original Issue Date or approved by the affirmative vote of a majority of the Board after the Original Issue Date, including any employment, severance or consulting agreements, or the issuance of shares of Common Stock upon the exercise of such Common Stock Derivative, (5) the issuance of shares of Common Stock as consideration for an arm’s-length acquisition of a business or assets from Third Parties that is approved by a majority of the Corporation’s shareholders in accordance with the requirements under the Charter and the Corporation’s By-Laws and applicable law, or (6) the issuance of shares of Common Stock pursuant to any plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and the investment of additional optional amounts in Common Stock under such plan.
Exceptions to Adjustment Provisions. Without limiting any other exception contained in this Section 3, and in addition thereto, no adjustment need be made for (i) the issuance, conversion, exchange or exercise of options to acquire shares of Common Stock by officers, directors, employees, consultants, vendors, suppliers, dealers or other service providers of the Company which are outstanding as of the date hereof or which are or may be issuable pursuant to stock option or similar equity based plans approved by the Board of Directors, (ii) options, warrants or other agreements or rights to purchase capital stock of the Company issued and outstanding prior to the Closing Date and any issuance of shares of Common Stock in connection therewith, (iii) securities convertible into or exchangeable or exercisable for shares of Common Stock outstanding as of the date hereof and any issuance of Common Stock in connection therewith, (iv) rights to purchase shares of Common Stock in lieu of cash dividends pursuant to a Company plan for reinvestment of dividends or interest, (v) a change in the par value of shares of Common Stock (including a change from par value to no par value or vice versa), (vi) sales of shares of Common Stock pursuant to an employee stock purchase plan qualified under Section 423 of the Internal Revenue Code of 1986, as amended, approved by the Company's Board of Directors where such sales are at prices at least equal to 85% of the fair market value as applicable pursuant to Section 423 of the Internal Revenue Code of 1986, as amended and (vii) shares of Common Stock issued in good faith in connection with any business collaboration, including a merger or acquisition where a company or business is merged with or acquired by the Company or any subsidiary of the Company; provided, however, that, on the date of determination of the number of shares of Common Stock to be so issued, the Board of Directors shall have determined in good faith that the issue price of such shares shall be at least equal to the current market value of such shares.
