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"”).