Common use of No Adjustment for Exercise of Certain Options, Warrants, Etc Clause in Contracts

No Adjustment for Exercise of Certain Options, Warrants, Etc. The provisions of this Paragraph 3 shall not apply to the following shares of Common Stock issued, issuable or deemed outstanding under subparagraphs 3.1(1) to (9) inclusive: (i) shares of Common Stock issued or issuable upon (A) conversion of (x) the Company's notes (the "Notes") (and including any cash payment for Excess Shares (as such term is defined in the Notes)), (y) the Company's Series A Convertible Preferred Stock (the "Series A Preferred Stock") or (z) the Company's Series B Convertible Preferred Stock (the "Series B Preferred Stock"), and (B) the exercise of these Warrants, in each case issued or issuable under the Securities Purchase Agreement dated as of February 12, 2003 between the Company and Warburg (the "Purchase Agreement"), (ii) other warrants to purchase Common Stock issued or issuable to the Holder pursuant to the Purchase Agreement and the Common Stock issuable upon exercise thereof, (iii) warrants issued to lenders of non-convertible debt and the Common Stock issuable upon exercise thereof; provided such warrants do not exceed, in the aggregate, 5% of the issued and outstanding shares of Common Stock and the terms thereof have been approved by the Board of Directors, (iv) shares of Common Stock issued as consideration for bona fide acquisitions, mergers, joint ventures or similar transactions, provided that the terms thereof are approved by the Board of Directors, (v) shares of Common Stock issued or issuable pursuant to any stock option, stock purchase or similar plan or arrangement for the benefit of the employees, directors or consultants of the Company or its subsidiaries, duly adopted by the Board of Directors and (vi) shares of Common Stock issued in a bona fide underwritten public offering underwritten by a nationally recognized investment bank pursuant to an effective registration under the Securities Act of 1933, as amended, or any similar statute then in force.