Common use of Excluded Issuances Clause in Contracts

Excluded Issuances. Anything herein to the contrary notwithstanding, the Company shall not be required to make any adjustment of the Warrant Price (x) where such an adjustment would be duplicative of another adjustment of the Warrant Price resulting from the same event that is made pursuant to other provisions of this Warrant or (y) in the case of (i) capital stock, Options or Convertible Securities issued or issuable to directors, officers, employees or consultants of the Company in connection with their service as directors of the Company, their employment by the Company or their retention as consultants by the Company pursuant to any employee benefit plans or programs approved by the Board or any committee thereof; (ii) capital stock, Options or Convertible Securities issued or issuable to landlords or in connection with bank debt or equipment leases, (iii) capital stock, Options or Convertible Securities issued or issuable to collaborative partners in licensing or partnering transactions (the primary purpose of which is not to raise equity capital); (iv) shares of Common Stock issued or issuable upon the conversion of the Company's Series A-1 Preferred Stock, (v) shares of Common Stock issued or issuable upon the conversion or exercise of Options or Convertible Securities outstanding on the date hereof, and (vi) shares of Common Stock issued or issuable by reason of a dividend, stock split or other distribution payable pro rata to all holders of Common Stock (but only to the extent that such a dividend, split or distribution results in an adjustment in the Warrant Price pursuant to the other provisions of this Warrant) (collectively, "Excluded Issuances").

Excluded Issuances. Anything herein The participation rights set forth in this Section 9 shall not apply to the contrary notwithstanding, following issuances (the Company shall not be required to make any adjustment of the Warrant Price (x) where such an adjustment would be duplicative of another adjustment of the Warrant Price resulting from the same event that is made pursuant to other provisions of this Warrant or (y) in the case of “Excluded Issuances”): (i) capital stock, Options the sale or Convertible Securities issued or issuable to directors, officers, employees or consultants issuance of the Securities under the Transaction Documents; (ii) the grant by the Company of equity issuances under its equity incentive and stock option plans, including any such plans approved by the Company’s Board of Directors and stockholders in the future and any equity issuances in exchange for any existing employee stock options for the purpose of repricing such employee stock options; (iii) the grant or issuance by the Company of Common Stock options or warrants as full or partial payment of a customary advisory fee payable to a nationally recognized bank or investment bank in connection with their service as directors a strategic transaction or financing; (iv) the issuance by the Company of any shares of Common Stock upon the exercise of an option or warrant or the conversion of a security (including, for the avoidance of doubt, the Company’s 2.5% Series B Convertible Preferred Stock, par value $.001 per share) outstanding on the date hereof (provided that the terms of such options or warrants or securities are not amended or modified in any manner after the date hereof) or an option or warrant issued or granted in compliance with this paragraph; (v) shares issued pursuant to the Company’s employee stock purchase plans, including any such plans approved by the Company’s Board of Directors and stockholders in the future; (vi) shares of Common Stock issued in connection with any stock split or subdivision, stock dividend or recapitalization of the Company; (vii) shares of Common Stock or warrants issued in connection with acquisitions by or of the Company, their employment whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, occurring after the Company or their retention as consultants by the Company pursuant to any employee benefit plans or programs approved by the Board or any committee thereof; (ii) capital stockClosing Date, Options or Convertible Securities issued or issuable to landlords or in connection with bank debt or equipment leases, (iii) capital stock, Options or Convertible Securities issued or issuable to collaborative partners in licensing or partnering transactions (the primary purpose of which is not to raise equity capital); (ivviii) shares of Common Stock or warrants issued in connection with a joint venture, strategic alliance or issuable upon other commercial relationship, the conversion primary purpose of the Company's Series A-1 Preferred Stock, which is not to raise equity capital; (vix) shares of Common Stock pursuant to a bona fide firm commitment underwritten public offering with gross proceeds to the Company of at least $25 million with a nationally recognized underwriter (it being understood, however, that the Company shall use its reasonable best efforts to cause the underwriter of any such public offering completed on or before June 4, 2007 to allocate five percent (5%) of the Common Stock to be issued or issuable upon pursuant to such public offering for purchase by the conversion or exercise of Options or Convertible Securities outstanding on the date hereofPurchasers collectively as a group, such allocation to be distributed pro rata among such Purchasers); and (vix) shares issuances of equity securities, including without limitation pursuant to Section 3(a)(9) of the Securities Act, in exchange for the Company’s existing outstanding indebtedness, including without limitation issuances of Common Stock issued or issuable by reason of a dividend, stock split or other distribution payable pro rata to all holders of Common Stock (but only to in exchange for the extent that such a dividend, split or distribution results in an adjustment in the Warrant Price pursuant to the other provisions of this Warrant) (collectively, "Excluded Issuances")Company’s 5.25% Convertible Subordinated Debentures due 2006.

Excluded Issuances. Anything herein to the contrary notwithstandingNotwithstanding any other provision of this Article V, the Company no adjustment shall not be required to make any adjustment of the Warrant Price (x) where such an adjustment would be duplicative of another adjustment of the Warrant Price resulting from the same event that is made pursuant to other provisions of this Warrant or (y) Article V in the case respect of (i) capital stockthe issuance of shares of Common Stock for cash in any underwritten Public Offering pursuant to a registration statement declared effective under the Securities Act; (ii) the issuance of shares of Common Stock pursuant to any adjustment provided for in this Article V; (iii) the issuance of shares of Common Stock, Options or Options, Convertible Securities or Cash or other Property as a distribution to the holders of shares of Common Stock if, simultaneously with such distribution or dividend payment, the Holders received full payment or distribution of all amounts required by Section 6.3; (iv) Common Stock or Options to purchase Common Stock issued or issuable to directorsemployees, officers, employees directors or consultants of the Company in connection with their service as directors Issuer or any Subsidiary pursuant to the terms of any stock incentive plan or stock bonus plan of the CompanyIssuer filed with the Securities and Exchange Commission and incorporated by reference as an exhibit to the Issuer’s Annual Report on Form 10-K for the fiscal year ended December 29, their employment by the Company or their retention as consultants by the Company pursuant to any employee benefit plans or programs approved by the Board or any committee thereof2007; (ii) capital stock, Options or Convertible Securities issued or issuable to landlords or in connection with bank debt or equipment leases, (iii) capital stock, Options or Convertible Securities issued or issuable to collaborative partners in licensing or partnering transactions (the primary purpose of which is not to raise equity capital); (iv) shares of Common Stock issued or issuable upon the conversion of the Company's Series A-1 Preferred Stock, (v) shares Securities issued pursuant to transactions involving technology licensing, research or development activities, the use or acquisition of strategic assets, properties or rights, or the distribution, manufacture or marketing of the Issuer’s products, which transactions are for non-financing purposes; provided, that Securities issued pursuant to this clause (v), may not exceed 0.5% of the Common Stock issued or issuable upon (on a Fully Diluted Basis) immediately after giving effect to the conversion or exercise of Options or Convertible Securities outstanding on the date hereof, and Conversion; (vi) shares Securities issued in private placements for per share consideration equal to at least 80% of Common Stock issued or issuable by reason of a dividendFair Market Value; provided, stock split or other distribution payable pro rata to all holders of Common Stock (but only that the aggregate net proceeds to the extent that such a dividend, split or distribution results in an adjustment in Issuer during the Warrant Price pursuant to the other provisions term of this WarrantAgreement from such private placements shall not exceed $200 million; and (vii) Securities issued upon the exercise of conversion or exchange rights, options or subscription calls, warrants (including the Warrants), commitments or claims (collectively, "“Excluded Issuances"”).

Excluded Issuances. Anything herein to the contrary notwithstandingNotwithstanding any other provision of this Article V, the Company no adjustment shall not be required to make any adjustment of the Warrant Price (x) where such an adjustment would be duplicative of another adjustment of the Warrant Price resulting from the same event that is made pursuant to other provisions of this Warrant Section 5.3 or (y) 5.5 in the case respect of (i) capital stockthe issuance of Common Stock in an underwritten public offering that is registered with the Commission, (ii) the issuance of Common Stock or Options to purchase Common Stock issued to employees, officers or Convertible Securities issued or issuable to directors, officers, employees or consultants directors of the Company or any Subsidiary, or the issuance of Common Stock upon the exercise of any such Options, provided, however, that the aggregate amount of all such Common Stock or Common Stock which may be acquired upon the exercise of such Options shall not exceed 1,000,000 shares and equivalents (subject to pro rata adjustment in connection with their service the event of any stock dividend or distribution paid in shares of Common Stock or any stock split or subdivision, reverse stock split or combination or other similar pro rata recapitalization event affecting the Common Stock)(other than issuances covered by clause (vi) below or by Section 5.3(b) for which the securities of Common Stock shall be deemed to have been sold for a consideration per share less than the Market Price for the Common Stock determined as directors of the Company, their employment by date of the Company or their retention as consultants by the Company grant of such option (provided that any options issued pursuant to any employee benefit plans the Company's stock option or programs approved by Equity Incentive Plans which are issued at fair market value in accordance with the Board terms of such Plan shall also be deemed to be issued at or any committee thereof; (ii) capital stock, Options or Convertible Securities issued or issuable to landlords or in connection with bank debt or equipment leasesgreater than Market Price for purposes of this Section), (iii) capital stock, Options or Convertible Securities issued or issuable the issuance from time to collaborative partners in licensing or partnering transactions (the primary purpose time of which is not to raise equity capital); (iv) shares of Common Stock issued or issuable upon the conversion exercise of any of the Company's Series A-1 Preferred StockWarrants, (iv) any exercise of the Warrants or the warrants issued to affiliates of Enron Corp. on January 8, 1998, as amended through the date hereof, (v) shares the issuance of Common Stock or Options in any merger, share exchange, consolidation, liquidation or other business combination required to be approved and actually approved by the requisite vote (being not less than a majority based on voting power) of the shareholders of the Company and (vi) securities issued or issuable upon the exercise of conversion or exercise of Options exchange rights, options or Convertible Securities subscription calls, warrants, commitments or claims, provided that the foregoing are issued and outstanding on the date hereof, hereof and (vi) shares are listed on Schedule 4.19 of Common Stock issued or issuable by reason of a dividend, stock split or other distribution payable pro rata to all holders of Common Stock (but only to the extent that such a dividend, split or distribution results in an adjustment in the Warrant Price pursuant to the other provisions of this Warrant) (collectively, "Excluded Issuances")Purchase Agreement.

Excluded Issuances. Anything herein to the contrary notwithstanding, the Company shall not be required to make any adjustment of the Warrant Price for any Common Stock issued or deemed to be issued by the Company or issuable: (xA) where such an adjustment would be duplicative pursuant to that certain Subscription Agreement November 7, 2006, by and among the Company and certain Subscribers (the “Subscription Agreement”) and securities issued upon the conversion of another adjustment 6% Convertible Debentures (the “Debentures”) or as a dividend or other distribution on the Debentures or securities issued upon exercise of the Warrant Price resulting from warrants issued thereunder; (B) upon the same event that is made pursuant to other provisions conversion, exercise or exchange of this Warrant or Options and Convertible Securities outstanding on the date on which the first Debenture was issued; (yC) in connection with the case issuance of (i) capital stockCommon Stock issued to officers, Options or Convertible Securities issued or issuable to directors, officers, employees or consultants of the Company in connection with their service as directors of the Company, their employment by the Company or their retention as consultants by the Company any Subsidiary pursuant to any employee benefit stock option plans or programs other compensatory agreements or arrangements approved by the Board or pursuant to guidelines approved by the Board or upon exercise of options or warrants granted to such parties pursuant to any committee thereofsuch plan or arrangement; (D) in connection with a Qualifying Public Offering (as defined below); (E) pursuant to an acquisition or Strategic Investment (as defined below) in which the Company issues its securities and which is approved by a majority of its independent directors or (D) in a transaction described in Section 3.6.1 or 3.6.2 of this Warrant (collectively, “Excluded Issuances”). For purposes of this Section 3.7, (i) “Qualifying Public Offering” means a firm commitment underwritten public offering of Common Stock (i) resulting in the receipt by the Company of not less than $5 million of gross proceeds and (ii) no later than the date the Securities and Exchange Commission declares a Registration Statement for the Qualifying Public Offering effective, the Common Stock being listed for trading and/or quotation on an Eligible Market; (ii) capital stock“Eligible Market” means the OTC Bulletin Board, Options The New York Stock Exchange, Inc., the American Stock Exchange, the Nasdaq National Market or Convertible Securities issued or issuable to landlords or in connection with bank debt or equipment leases, The Nasdaq Capital Market and (iii) capital stock, Options “Strategic Investment” means an investment in the same or Convertible Securities issued or issuable to collaborative partners in licensing or partnering transactions (the primary purpose of which is not to raise equity capital); (iv) shares of Common Stock issued or issuable upon the conversion similar business as that of the Company's Series A-1 Preferred Stock, (v) shares of Common Stock issued or issuable upon the conversion or exercise of Options or Convertible Securities outstanding on the date hereof, and (vi) shares of Common Stock issued or issuable by reason of a dividend, stock split or other distribution payable pro rata to all holders of Common Stock (but only to the extent that such a dividend, split or distribution results in an adjustment in the Warrant Price pursuant to the other provisions of this Warrant) (collectively, "Excluded Issuances").

Excluded Issuances. Anything herein The participation rights set forth in this Section 9 shall not apply to the contrary notwithstanding, following issuances (the Company shall not be required to make any adjustment of the Warrant Price (x) where such an adjustment would be duplicative of another adjustment of the Warrant Price resulting from the same event that is made pursuant to other provisions of this Warrant or (y) in the case of “Excluded Issuances”): (i) capital stock, Options or Convertible Securities issued or issuable to directors, officers, employees or consultants the sale of the Securities under this Agreement or the issuance of the Underlying Securities, (ii) the grant by the Company of equity issuances under its equity incentive and stock option plans, including any such plans approved by the Company’s Board of Directors and stockholders in the future, (iii) the grant or issuance by the Company of Common Stock options or warrants to as full or partial payment of a customary advisory fee payable to a nationally recognized bank or investment bank in connection with their service as directors a strategic transaction or financing, (iv) the issuance by the Company of any shares of Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof (provided that the terms of such options or warrants are not amended or modified in any manner after the date hereof) or an option or warrant issued or granted in compliance with this paragraph, (v) shares issued pursuant to the Company’s Employee Stock Purchase Plan, (vi) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization of the Company, their employment (vii) shares of Common Stock or warrants issued in connection with the acquisition by the Company of any corporation or their retention as consultants by other entity or assets of any corporation or other entity occurring after the Company pursuant to any employee benefit plans Closing Date, (viii) shares of Common Stock or programs approved by the Board or any committee thereof; (ii) capital stock, Options or Convertible Securities warrants issued or issuable to landlords or in connection with bank debt a joint venture, strategic alliance or equipment leasesother commercial relationship, (iii) capital stock, Options or Convertible Securities issued or issuable to collaborative partners in licensing or partnering transactions (the primary purpose of which is not to raise equity capital); , (ivix) shares of Common Stock issued or issuable upon pursuant to a bona fide firm commitment underwritten public offering with gross proceeds to the conversion Company of the Company's Series A-1 Preferred Stock, (v) shares of Common Stock issued or issuable upon the conversion or exercise of Options or Convertible Securities outstanding on the date hereofat least $30 million with a nationally recognized underwriter, and (vix) shares of Common Stock securities issued or issuable by reason of in a dividend, stock split or other distribution payable pro rata to all holders of Common Stock (but only to the extent that such a dividend, split or distribution results in an adjustment in the Warrant Price registered direct public offering pursuant to the other provisions Company’s currently effective shelf registration statement with gross proceeds to the Company of this Warrant) (collectively, "Excluded Issuances")at least $30 million.

Excluded Issuances. Anything herein to the contrary notwithstandingNotwithstanding any other provision of this Article V, the Company no adjustment shall not be required to make any adjustment of the Warrant Price (x) where such an adjustment would be duplicative of another adjustment of the Warrant Price resulting from the same event that is made pursuant to other provisions of this Warrant or (y) Article V in the case respect of (i) capital stockthe issuance of shares of Common Stock for cash in any underwritten Public Offering pursuant to a registration statement declared effective under the Securities Act; (ii) the issuance of shares of Common Stock pursuant to any adjustment provided for in this Article V; (iii) the issuance of shares of Common Stock, Options or Options, Convertible Securities or Cash or other Property as a distribution to the holders of shares of Common Stock if, simultaneously with such distribution or dividend payment, the Holders received full payment or distribution of all amounts required by Section 6.3; (iv) Common Stock or Options to purchase Common Stock issued or issuable to directorsemployees, officers, employees directors or consultants of the Company in connection with their service as directors Issuer or any Subsidiary pursuant to the terms of any stock incentive plan or stock bonus plan of the CompanyIssuer filed with the Securities and Exchange Commission and incorporated by reference as an exhibit to the Issuers Annual Report on Form 10-K for the fiscal year ended December 29, their employment by the Company or their retention as consultants by the Company pursuant to any employee benefit plans or programs approved by the Board or any committee thereof2007; (ii) capital stock, Options or Convertible Securities issued or issuable to landlords or in connection with bank debt or equipment leases, (iii) capital stock, Options or Convertible Securities issued or issuable to collaborative partners in licensing or partnering transactions (the primary purpose of which is not to raise equity capital); (iv) shares of Common Stock issued or issuable upon the conversion of the Company's Series A-1 Preferred Stock, (v) shares Securities issued pursuant to transactions involving technology licensing, research or development activities, the use or acquisition of strategic assets, properties or rights, or the distribution, manufacture or marketing of the Issuers products, which transactions are for non-financing purposes; provided, that Securities issued pursuant to this clause (v), may not exceed 0.5% of the Common Stock issued or issuable upon (on a Fully Diluted Basis) immediately after giving effect to the conversion or exercise of Options or Convertible Securities outstanding on the date hereof, and Conversion; (vi) shares Securities issued in private placements for per share consideration equal to at least 80% of Common Stock issued or issuable by reason of a dividendFair Market Value; provided, stock split or other distribution payable pro rata to all holders of Common Stock (but only that the aggregate net proceeds to the extent that such a dividend, split or distribution results in an adjustment in Issuer during the Warrant Price pursuant to the other provisions term of this WarrantAgreement from such private placements shall not exceed $200 million; and (vii) Securities issued upon the exercise of conversion or exchange rights, options or subscription calls, warrants (including the Warrants), commitments or claims (collectively, "Excluded Issuances").

Excluded Issuances. Anything herein to the contrary notwithstanding, the Company shall not be required to make any adjustment of the Warrant Exercise Price (x) where such an adjustment would be duplicative of another adjustment of the Warrant Price resulting from the same event that is made pursuant to other provisions of this Warrant or (y) in the case of the issuance of (iA) capital stock, Options or Convertible Securities issued or issuable to directors, officers, employees or consultants of the Company in connection with their service as directors of the Company, their employment by the Company or their retention as consultants by the Company pursuant to any employee benefit plans or programs an equity compensation program approved by the Board of Directors of the Company or any the compensation committee thereof; (ii) capital stock, Options or Convertible Securities issued or issuable to landlords or in connection with bank debt or equipment leasesof the Board of Directors of the Company, (iii) capital stock, Options or Convertible Securities issued or issuable to collaborative partners in licensing or partnering transactions (the primary purpose of which is not to raise equity capital); (ivB) shares of Common Stock issued or issuable upon the conversion of the Company's Series A-1 Preferred Stock, (v) shares of Common Stock issued or issuable upon the conversion or exercise of Options or Convertible Securities outstanding on issued prior to the date hereof, provided such securities are not amended after the date hereof to increase the number of shares of Common Stock issuable thereunder or to lower the exercise or conversion price thereof, (C) securities issued in the Placement and securities issued upon the exercise or conversion of those securities, (viD) shares of Common Stock issued or issuable by reason of a dividend, stock split or other distribution payable pro rata to all holders on shares of Common Stock (but only to the extent that such a dividend, split or distribution results in an adjustment in the Warrant Exercise Price pursuant to the other provisions of this WarrantAgreement), (E) shares of Common Stock issued in an offering for cash for the account of the Company that is underwritten on a firm commitment basis and is registered with the SEC under the Act (other than an "at-the-market offering" as defined in Rule 415(a)(4) under the 1933 Act and "equity lines"), (F) shares of Common Stock issued or issuable to the lessor or vendor in any office lease or equipment lease or similar equipment financing transaction in which the Company or any Subsidiary obtains the use of such office space or equipment for its business, approved in good faith by the Board of Directors, (G) shares of Common Stock issued or issuable to a bank or similar financial institution in connection with a credit line or facility, and (H) shares of Common Stock issued to parties that are suppliers, customers or strategic partners investing in connection with a commercial relationship with the Company, approved in good faith by the Board of Directors, the primary purpose of which issuance is not to raise capital (collectively, "Excluded Issuances").

Excluded Issuances. Anything herein to the contrary notwithstandingNotwithstanding any other provision of this Article V, the Company no adjustment shall not be required to make any adjustment of the Warrant Price (x) where such an adjustment would be duplicative of another adjustment of the Warrant Price resulting from the same event that is made pursuant to other provisions of this Warrant or (y) Article V in the case respect of (i) capital stockthe issuance of shares of Common Stock for cash in any underwritten Public Offering pursuant to a registration statement declared effective under the Securities Act; (ii) the issuance of shares of Common Stock pursuant to any adjustment provided for in this Article V; (iii) the issuance of shares of Common Stock, Options or Options, Convertible Securities or Cash or other Property as a distribution to the holders of shares of Common Stock if, simultaneously with such distribution or dividend payment, the Holders received full payment or distribution of all amounts required by Section 6.3; (iv) Common Stock or Options to purchase Common Stock issued or issuable to directorsemployees, officers, employees directors or consultants of the Company in connection with their service as directors Issuer or any Subsidiary pursuant to the terms of any of the CompanyNextWave Wireless LLC 2005 Units Plan, their employment by CYGNUS Communications, Inc.'s 2004 Stock Option Plan and the Company 2005 PacketVideo Equity Incentive Plan (as in effect on the date hereof); provided, however, that all of such Common Stock and Options are issued for not less than (or their retention have an exercise price equal to not less than) the single-day Fair Market Value of such Common Stock as of the grant date; (v) Common Stock or Options to purchase Common Stock issued to employees, officers, directors or consultants by the Company of CYGNUS Communications, Inc. or any Subsidiary of CYGNUS Communications, Inc. pursuant to any employee benefit plans or programs approved by the Board or any committee thereof; conversion of options to purchase CYGNUS common stock into options to purchase Common Stock on the conversion terms set forth in CYGNUS Communications, Inc.'s 2004 Stock Option Plan (ii) capital stock, Options or Convertible Securities issued or issuable to landlords or as in connection with bank debt or equipment leases, (iii) capital stock, Options or Convertible Securities issued or issuable to collaborative partners in licensing or partnering transactions (effect on the primary purpose of which is not to raise equity capitaldate hereof); (ivvi) shares of Common Stock or Options to purchase Common Stock issued to employees, officers, directors or issuable upon consultants of PacketVideo Corporation or any Subsidiary of PacketVideo Corporation pursuant to the conversion of options to purchase PacketVideo common stock into options to purchase Common Stock on the conversion terms set forth in the 2005 PacketVideo Equity Incentive Plan (as in effect on the date hereof) provided, that Securities issued pursuant to this clause (vi) and clause (vii), in the aggregate, may not exceed 0.5% of the Common Stock (on a Fully Diluted Basis) immediately after giving effect to the Conversion; (vii) Securities issued pursuant to transactions involving technology licensing, research or development activities, the use or acquisition of strategic assets, properties or rights, or the distribution, manufacture or marketing of the Company's Series A-1 Preferred Stockproducts, which transactions are for non-financing purposes; provided, that Securities issued pursuant to this clause (vvii) shares of Common Stock issued or issuable upon the conversion or exercise of Options or Convertible Securities outstanding on the date hereof, and clause (vi) shares ), in the aggregate, may not exceed 0.5% of Common Stock issued or issuable by reason of a dividend, stock split or other distribution payable pro rata to all holders of the Common Stock (but only on a Fully Diluted Basis) immediately after giving effect to the extent Conversion; (viii) Securities issued in private placements for per share consideration equal to at least 80% of Fair Market Value; provided, that such a dividend, split or distribution results in an adjustment in the Warrant Price pursuant aggregate net proceeds to the other provisions Company during the term of this WarrantAgreement from such private placements shall not exceed $200 million; and (ix) Securities issued upon the exercise of conversion or exchange rights, options or subscription calls, warrants (including the Warrants), commitments or claims (collectively, "Excluded Issuances").

Excluded Issuances. Anything herein to the contrary notwithstandingNotwithstanding any other provision of this Article V, the Company no adjustment shall not be required to make any adjustment of the Warrant Price (x) where such an adjustment would be duplicative of another adjustment of the Warrant Price resulting from the same event that is made pursuant to other provisions of this Warrant Section 5.3 or (y) 5.5 in the case of respect of: (i) capital stockthe issuance of Common Stock in an underwritten public offering that is registered with the Commission, Options or Convertible Securities (ii) any securities issued upon conversion of the Series B Preferred Stock; (iii) any securities issued or issuable granted to directors, eligible officers, employees or directors of, or consultants of to, the Company in connection with their service as directors of the Company, their employment by the Company or their retention as consultants by the Company Corporation and its subsidiaries pursuant to any employee benefit plans or programs approved by the Board or any committee thereof; (ii) capital stock option, issuance, appreciation rights, restricted stock, Options or Convertible Securities issued or issuable to landlords or in connection with bank debt or equipment leases, (iii) capital phantom stock, Options stock purchase plan or Convertible Securities other equity incentive plan for such persons (including without limitation, securities issued upon the exercise of such securities, but excluding any stock options that are not issued pursuant to a stock option plan or issuable to collaborative partners in licensing or partnering transactions (the primary purpose of which is not to raise equity capitala stock purchase plan); (iv) any securities issued upon exercise of any warrants or options outstanding as of the Closing Date; (v) any securities issued to financial institutions in connection with debt financings; (vi) securities issuable under the Letter Agreement Regarding Participation in Carrizo 2001 Program dated as of May 1, 2001, among the Corporation, Berea Associates, LLC, Berea Oil & Gas Corp., PAC Finance (USA) Inc., William R. Ziegler, Thomas H. O'Neill, Jr. and Berea Associates II LLX, xx xx xxxxxx xx ox xxx Xxxxxxx Xxxx; (xii) the issuance of Common Stock or Options in any merger, share exchange, consolidation, liquidation or other business combination required to be approved and actually approved by the requisite vote (being not less than a majority based on voting power) of the shareholders of the Company; (viii) up to an aggregate of 500,000 shares of Common Stock issued or issuable upon after the conversion of Closing Date as consideration for any property acquisition, provided, however, that the Company's Series A-1 Preferred StockCorporation shall be entitled to issue, (v) as an excluded issuance hereunder, additional shares of Common Stock for property acquisitions (in excess of such 500,000 shares) upon the prior written consent of Mellon Ventures L.P., which consent shall not be unreasonably withheld; or (ix) securities of the Corporation issued or issuable upon the conversion or exercise of Options or Convertible Securities outstanding on other securities, which other securities of the date hereof, and (vi) shares of Common Stock issued or issuable by reason of a dividend, stock split or other distribution payable pro rata to all holders of Common Stock (but only to the extent that such a dividend, split or distribution results Corporation had previously resulted in an adjustment in the Warrant Price hereunder (or which had, pursuant to the other provisions of this Warrant) (collectivelyterms hereof, "Excluded Issuances"not required an adjustment).

Excluded Issuances. Anything herein to the contrary notwithstanding, the Company shall not be required to make any adjustment of the Warrant Exercise Price (x) where such an adjustment would be duplicative of another adjustment of the Warrant Price resulting from the same event that is made pursuant to other provisions of this Warrant or (y) in the case of the issuance of (iA) capital stock, Options or Convertible Securities issued or issuable to directors, officers, employees or consultants of the Company in connection with their service as directors of the Company, their employment by the Company or their retention as consultants by the Company pursuant to any employee benefit plans or programs an equity compensation program approved by the Board of Directors of the Company or any the compensation committee thereof; (ii) capital stock, Options or Convertible Securities issued or issuable to landlords or in connection with bank debt or equipment leasesof the Board of Directors of the Company, (iii) capital stock, Options or Convertible Securities issued or issuable to collaborative partners in licensing or partnering transactions (the primary purpose of which is not to raise equity capital); (ivB) shares of Common Stock issued or issuable upon the conversion of the Company's Series A-1 Preferred Stock, (v) shares of Common Stock issued or issuable upon the conversion or exercise of Options or Convertible Securities outstanding on issued prior to the date hereof, provided such securities are not amended after the date hereof to increase the number of shares of Common Stock issuable thereunder or to lower the exercise or conversion price thereof, (C) securities issued pursuant to the Purchase Agreement and securities issued upon the exercise or conversion of those securities, (viD) shares of Common Stock issued or issuable by reason of a dividend, stock split or other distribution payable pro rata to all holders on shares of Common Stock (but only to the extent that such a dividend, split or distribution results in an adjustment in the Warrant Exercise Price pursuant to the other provisions of this Warrant), (E) shares of Common Stock issued in an offering for cash for the account of the Company that is underwritten on a firm commitment basis and is registered with the SEC under the Act (other than an "at-the-market offering" as defined in Rule 415(a)(4) under the 1933 Act and "equity lines"), (F) shares of Common Stock issued or issuable to the lessor or vendor in any office lease or equipment lease or similar equipment financing transaction in which the Company or any Subsidiary obtains the use of such office space or equipment for its business, approved in good faith by the Board of Directors, (G) shares of Common Stock issued or issuable to a bank or similar financial institution in connection with a credit line or facility, and (H) shares of Common Stock issued to parties that are suppliers, customers or strategic partners investing in connection with a commercial relationship with the Company, approved in good faith by the Board of Directors, the primary purpose of which issuance is not to raise capital (collectively, "Excluded Issuances").