Common use of Excluded Issuances Clause in Contracts

Excluded Issuances. The participation rights set forth in this Section 9 shall not apply to the following issuances (the “Excluded Issuances”): (i) 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 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, (vii) shares of Common Stock or warrants issued in connection with the acquisition by the Company of any corporation or other entity or assets of any corporation or other entity occurring after the Closing Date, (viii) shares of Common Stock or warrants issued in connection with a joint venture, strategic alliance or other commercial relationship, the primary purpose of which is not to raise equity capital, (ix) shares of Common Stock pursuant to a bona fide firm commitment underwritten public offering with gross proceeds to the Company of at least $30 million with a nationally recognized underwriter, and (x) securities issued in a registered direct public offering pursuant to the Company’s currently effective shelf registration statement with gross proceeds to the Company of at least $30 million.

Excluded Issuances. The participation rights set forth Notwithstanding any other provision of this Article V, no adjustment shall be made pursuant to this Article V in this Section 9 shall not apply to the following issuances (the “Excluded Issuances”): respect of (i) the sale issuance of shares of Common Stock for cash in any underwritten Public Offering pursuant to a registration statement declared effective under the Securities under this Agreement or the issuance of the Underlying Securities, Act; (ii) the grant by the Company issuance 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 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, (vii) shares of Common Stock or warrants issued in connection with the acquisition by the Company of any corporation or other entity or assets of any corporation or other entity occurring after the Closing Date, (viii) shares of Common Stock or warrants issued in connection with a joint venture, strategic alliance or other commercial relationship, the primary purpose of which is not to raise equity capital, (ix) shares of Common Stock pursuant to any adjustment provided for in this Article V; (iii) the issuance of shares of Common Stock, Options, Convertible Securities or Cash or other Property as a bona fide firm commitment underwritten public offering distribution to the holders of shares of Common Stock if, simultaneously with gross 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 to employees, officers, directors or consultants of the Issuer or any Subsidiary pursuant to the terms of any of the NextWave Wireless LLC 2005 Units Plan, CYGNUS Communications, Inc.'s 2004 Stock Option Plan and the 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 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 of CYGNUS Communications, Inc. or any Subsidiary of CYGNUS Communications, Inc. pursuant to the 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 (as in effect on the date hereof); (vi) Common Stock or Options to purchase Common Stock issued to employees, officers, directors or 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 products, which transactions are for non-financing purposes; provided, that Securities issued pursuant to this clause (vii) and clause (vi), in the aggregate, may not exceed 0.5% of the Common Stock (on a Fully Diluted Basis) immediately after giving effect to the Conversion; (viii) Securities issued in private placements for per share consideration equal to at least 80% of Fair Market Value; provided, that the aggregate net proceeds to the Company during the term of at least this Agreement from such private placements shall not exceed $30 million with a nationally recognized underwriter, 200 million; and (xix) securities Securities issued in a registered direct public offering pursuant to upon the Company’s currently effective shelf registration statement with gross proceeds to exercise of conversion or exchange rights, options or subscription calls, warrants (including the Company of at least $30 millionWarrants), commitments or claims (collectively, "Excluded Issuances").

Excluded Issuances. The participation rights set forth Notwithstanding any other provision of this Article V, no adjustment shall be made pursuant to this Article V in this Section 9 shall not apply to the following issuances (the “Excluded Issuances”): respect of (i) the sale issuance of shares of Common Stock for cash in any underwritten Public Offering pursuant to a registration statement declared effective under the Securities under this Agreement or the issuance of the Underlying Securities, Act; (ii) the grant by the Company issuance 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 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, (vii) shares of Common Stock or warrants issued in connection with the acquisition by the Company of any corporation or other entity or assets of any corporation or other entity occurring after the Closing Date, (viii) shares of Common Stock or warrants issued in connection with a joint venture, strategic alliance or other commercial relationship, the primary purpose of which is not to raise equity capital, (ix) shares of Common Stock pursuant to any adjustment provided for in this Article V; (iii) the issuance of shares of Common Stock, Options, Convertible Securities or Cash or other Property as a bona fide firm commitment underwritten public offering distribution to the holders of shares of Common Stock if, simultaneously with gross 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 to employees, officers, directors or consultants of the Issuer or any Subsidiary pursuant to the terms of any stock incentive plan or stock bonus plan of the Issuer 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, 2007; (v) 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 (on a Fully Diluted Basis) immediately after giving effect to the Conversion; (vi) Securities issued in private placements for per share consideration equal to at least 80% of Fair Market Value; provided, that the aggregate net proceeds to the Company Issuer during the term of at least this Agreement from such private placements shall not exceed $30 million with a nationally recognized underwriter, 200 million; and (xvii) securities Securities issued in a registered direct public offering pursuant to upon the Company’s currently effective shelf registration statement with gross proceeds to exercise of conversion or exchange rights, options or subscription calls, warrants (including the Company of at least $30 millionWarrants), commitments or claims (collectively, Excluded Issuances).

Excluded Issuances. The participation rights set forth Notwithstanding any other provision of this Article V, no adjustment shall be made pursuant to Section 5.3 or 5.5 in this Section 9 shall not apply to the following issuances (the “Excluded Issuances”): respect of: (i) the sale of the Securities under this Agreement or the issuance of Common Stock in an underwritten public offering that is registered with the Underlying SecuritiesCommission, (ii) any securities issued upon conversion of 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, Series B Preferred Stock; (iii) any securities issued or granted to eligible officers, employees or directors of, or consultants to, the grant Corporation and its subsidiaries pursuant to any stock option, issuance, appreciation rights, restricted stock, phantom stock, stock purchase plan 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 a strategic transaction or financingother equity incentive plan for such persons (including without limitation, (iv) the issuance by the Company of any shares of Common Stock securities issued upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof (provided such securities, but excluding any stock options that the terms of such options or warrants are not amended issued pursuant to a stock option plan or modified in a stock purchase plan); (iv) any manner after securities issued upon exercise of any warrants or options outstanding as of the date hereof) or an option or warrant issued or granted in compliance with this paragraph, Closing Date; (v) shares any securities issued pursuant to the Company’s Employee Stock Purchase Plan, 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 in connection with after the Closing Date as consideration for any stock splitproperty acquisition, stock dividend or recapitalization of provided, however, that the CompanyCorporation shall be entitled to issue, (vii) 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 warrants issued in connection with the acquisition by the Company of any corporation or other entity or assets of any corporation or other entity occurring after the Closing Date, (viii) shares of Common Stock or warrants issued in connection with a joint venture, strategic alliance or other commercial relationship, the primary purpose of which is not to raise equity capital, (ix) shares securities of Common Stock pursuant to a bona fide firm commitment underwritten public offering with gross proceeds to the Company Corporation issued upon the conversion or exercise of at least $30 million with a nationally recognized underwriterother securities, and which other securities of the Corporation had previously resulted in an adjustment hereunder (x) securities issued in a registered direct public offering or which had, pursuant to the Company’s currently effective shelf registration statement with gross proceeds to the Company of at least $30 millionterms hereof, not required an adjustment).

Excluded Issuances. The participation rights set forth Notwithstanding any other provision of this Article V, no adjustment shall be made pursuant to Section 5.3 or 5.5 in this Section 9 shall not apply to the following issuances (the “Excluded Issuances”): respect of (i) the sale of the Securities under this Agreement or the issuance of Common Stock in an underwritten public offering that is registered with the Underlying SecuritiesCommission, (ii) the grant by issuance of Common Stock or Options to purchase Common Stock issued to employees, officers or directors of the Company or any Subsidiary, or the issuance of equity 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 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 under its equity incentive and 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 of the date of the grant of such option (provided that any options issued pursuant to the Company's stock option plans, including any or Equity Incentive Plans which are issued at fair market value in accordance with the terms of such plans approved by the Company’s Board Plan shall also be deemed to be issued at or greater than Market Price for purposes of Directors and stockholders in the futurethis Section), (iii) the grant or issuance by the Company from time to time 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 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 any of the Warrants, (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) 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 upon exercise of conversion of a security or exchange rights, options or subscription calls, warrants, commitments or claims, provided that the foregoing are issued and outstanding on the date hereof (provided that the terms of such options or warrants and 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 listed on Schedule 4.19 of the Company, (vii) shares of Common Stock or warrants issued in connection with the acquisition by the Company of any corporation or other entity or assets of any corporation or other entity occurring after the Closing Date, (viii) shares of Common Stock or warrants issued in connection with a joint venture, strategic alliance or other commercial relationship, the primary purpose of which is not to raise equity capital, (ix) shares of Common Stock pursuant to a bona fide firm commitment underwritten public offering with gross proceeds to the Company of at least $30 million with a nationally recognized underwriter, and (x) securities issued in a registered direct public offering pursuant to the Company’s currently effective shelf registration statement with gross proceeds to the Company of at least $30 millionPurchase Agreement.

Excluded Issuances. The participation rights set forth in this Section 9 Anything herein to the contrary notwithstanding, the Company shall not apply be required to the following issuances (the “Excluded Issuances”): (i) the sale make any adjustment of the Securities under this Agreement or Exercise Price in the case of the issuance of (A) capital stock, Options or Convertible Securities issued to directors, officers, employees or consultants of the Underlying SecuritiesCompany in connection with their service as directors of the Company, (ii) the grant their employment by the Company of or their retention as consultants by the Company pursuant to an equity issuances under its equity incentive and stock option plans, including any such plans compensation program approved by the Company’s Board of Directors and stockholders in of the futureCompany or the compensation committee of the Board of Directors of the Company, (iiiB) 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 a strategic transaction or financing, (iv) the issuance by the Company of any shares of Common Stock issued upon the conversion or exercise of Options or Convertible Securities 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 of an option or warrant or the conversion of a security outstanding on the date hereof those securities, (provided that the terms D) shares of such options or warrants are not amended or modified in any manner after the date hereof) or an option or warrant Common Stock issued or granted issuable by reason of a dividend, stock split or other distribution on shares of Common Stock (but only to the extent that such a dividend, split or distribution results in compliance with this paragraph, (v) shares issued an adjustment in the Exercise Price pursuant to the Company’s Employee Stock Purchase Planother provisions of this Agreement), (viE) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization an offering for cash for the account of the CompanyCompany 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"), (viiF) shares of Common Stock issued or warrants issued issuable to the lessor or vendor in connection with any office lease or equipment lease or similar equipment financing transaction in which the acquisition Company or any Subsidiary obtains the use of such office space or equipment for its business, approved in good faith by the Company Board of any corporation or other entity or assets of any corporation or other entity occurring after the Closing DateDirectors, (viiiG) shares of Common Stock issued or warrants issued issuable to a bank or similar financial institution in connection with a joint venturecredit line or facility, and (H) shares of Common Stock issued to parties that are suppliers, customers or strategic alliance or other partners investing in connection with a commercial relationshiprelationship with the Company, approved in good faith by the Board of Directors, the primary purpose of which issuance is not to raise equity capitalcapital (collectively, (ix) shares of Common Stock pursuant to a bona fide firm commitment underwritten public offering with gross proceeds to the Company of at least $30 million with a nationally recognized underwriter, and (x) securities issued in a registered direct public offering pursuant to the Company’s currently effective shelf registration statement with gross proceeds to the Company of at least $30 million"Excluded Issuances").

Excluded Issuances. The participation rights set forth in this Section 9 Anything herein to the contrary notwithstanding, the Company shall not apply be required to make any adjustment of the following issuances Warrant Price for any Common Stock issued or deemed to be issued by the Company or issuable: (A) 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 6% Convertible Debentures (the “Debentures”) or as a dividend or other distribution on the Debentures or securities issued upon exercise of the warrants issued thereunder; (B) upon the conversion, exercise or exchange of Options and Convertible Securities outstanding on the date on which the first Debenture was issued; (C) in connection with the issuance of Common Stock issued to officers, directors, employees or consultants of the Company or any Subsidiary pursuant to stock option plans or 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 such 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) 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 “Qualifying Public Offering” means a customary advisory fee payable to a nationally recognized bank or investment bank in connection with 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, (vii) shares of Common Stock or warrants issued in connection with the acquisition by the Company of any corporation or other entity or assets of any corporation or other entity occurring after the Closing Date, (viii) shares of Common Stock or warrants issued in connection with a joint venture, strategic alliance or other commercial relationship, the primary purpose of which is not to raise equity capital, (ix) shares of Common Stock pursuant to a bona fide firm commitment underwritten public offering with gross proceeds to of Common Stock (i) resulting in the receipt by the Company of at least not less than $30 5 million with a nationally recognized underwriter, of gross proceeds and (xii) securities issued 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) “Eligible Market” means the OTC Bulletin Board, The New York Stock Exchange, Inc., the American Stock Exchange, the Nasdaq National Market or The Nasdaq Capital Market and (iii) “Strategic Investment” means an investment in a registered direct public offering pursuant to the same or similar business as that of the Company’s currently effective shelf registration statement with gross proceeds to the Company of at least $30 million.

Excluded Issuances. The participation rights set forth in this Section 9 Anything herein to the contrary notwithstanding, the Company shall not apply be required to the following issuances (the “Excluded Issuances”): (i) the sale make any adjustment of the Securities under this Agreement or Exercise Price in the case of the issuance of (A) capital stock, Options or Convertible Securities issued to directors, officers, employees or consultants of the Underlying SecuritiesCompany in connection with their service as directors of the Company, (ii) the grant their employment by the Company of or their retention as consultants by the Company pursuant to an equity issuances under its equity incentive and stock option plans, including any such plans compensation program approved by the Company’s Board of Directors and stockholders in of the futureCompany or the compensation committee of the Board of Directors of the Company, (iiiB) 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 a strategic transaction or financing, (iv) the issuance by the Company of any shares of Common Stock issued upon the conversion or exercise of an option Options or warrant or Convertible Securities issued prior to the conversion of a security outstanding on date hereof, provided such securities are not amended after the date hereof (provided that to increase the terms number of such options shares of Common Stock issuable thereunder or warrants are not amended to lower the exercise or modified in any manner after the date hereof) or an option or warrant issued or granted in compliance with this paragraphconversion price thereof, (vC) shares securities issued pursuant to the Company’s Employee Stock Purchase PlanAgreement 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 on shares of Common Stock (but only to the extent that such a dividend, split or distribution results in an adjustment in the Exercise Price pursuant to the other provisions of this Warrant), (E) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization an offering for cash for the account of the CompanyCompany 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"), (viiF) shares of Common Stock issued or warrants issued issuable to the lessor or vendor in connection with any office lease or equipment lease or similar equipment financing transaction in which the acquisition Company or any Subsidiary obtains the use of such office space or equipment for its business, approved in good faith by the Company Board of any corporation or other entity or assets of any corporation or other entity occurring after the Closing DateDirectors, (viiiG) shares of Common Stock issued or warrants issued issuable to a bank or similar financial institution in connection with a joint venturecredit line or facility, and (H) shares of Common Stock issued to parties that are suppliers, customers or strategic alliance or other partners investing in connection with a commercial relationshiprelationship with the Company, approved in good faith by the Board of Directors, the primary purpose of which issuance is not to raise equity capitalcapital (collectively, (ix) shares of Common Stock pursuant to a bona fide firm commitment underwritten public offering with gross proceeds to the Company of at least $30 million with a nationally recognized underwriter, and (x) securities issued in a registered direct public offering pursuant to the Company’s currently effective shelf registration statement with gross proceeds to the Company of at least $30 million"Excluded Issuances").