Common use of Certain Issues Excepted Clause in Contracts

Certain Issues Excepted. Anything herein to the contrary notwithstanding, the Maker shall not be required to make any adjustment to the Conversion Price in connection with (i) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (ii) securities issued pursuant to the conversion or exercise of convertible or excercisable securities issued or outstanding on or prior to the date hereof or the Notes and Warrants issued pursuant to the Purchase Agreement (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Holders), (iii) the shares of Common Stock issuable upon the exercise of Warrants, (iv) securities issued in connection with strategic license agreements or other partnering arrangements so long as such issuances are not for the purpose of raising capital, (v) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company's stock option plans and employee stock purchase plans as they now exist on the date hereof, (vi) any warrants issued to the placement agent and its designees for the transactions contemplated by the Purchase Agreement, (vii) Common Stock issued in connection with consulting or advisory services not in excess of 5,000,000 shares and (viii) the payment of any principal in shares of Common Stock pursuant to this Note or the Other Notes.

Certain Issues Excepted. Anything herein to the contrary notwithstanding, the Maker shall not be required to make any adjustment to the Conversion Price in connection with (i) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (ii) securities issued pursuant to the conversion or exercise of convertible or excercisable securities issued or outstanding on or prior to the date hereof or the Notes and Warrants issued pursuant to the Purchase Agreement (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Holders), (iii) the shares of Common Stock issuable upon the exercise of Warrants, (iv) securities issued in connection with strategic license agreements or other partnering arrangements so long as such issuances are not for the purpose of raising capital, (v) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company's stock option plans and employee stock purchase plans as they now exist on the date hereof, (vi) any warrants issued to the placement agent and its designees for the transactions contemplated by the Purchase Agreement, (vii) Common Stock issued in connection with consulting or advisory services not in excess of 5,000,000 shares shares, and (viii) the payment of any principal in shares of Common Stock pursuant to this Note or the Other Notes.

Certain Issues Excepted. Anything herein to the contrary notwithstanding, the Maker Company shall not be required to make any adjustment to the Conversion Price in connection with (i) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (ii) securities issued pursuant to the conversion or exercise of convertible or excercisable exercisable securities issued or outstanding on or prior to the date hereof of the Purchase Agreement or the Notes and Warrants issued pursuant to the Purchase Agreement (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the HoldersHolder), (iiiii) the shares of Common Stock issuable upon the exercise of WarrantsConversion Shares, (iv) securities issued in connection with strategic license agreements or other partnering arrangements so long as such issuances are not for the purpose of raising capital, (viii) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company's stock option plans and employee stock purchase plans as they now that either (x) exist on the date hereofof the Purchase Agreement, or (y) do not exceed ten percent (10%) of the outstanding Common Stock of the Company as of the date of the Purchase Agreement, (viiv) any warrants note issued to the placement agent and its designees for the transactions contemplated by the Purchase Agreement, (vii) Common Stock issued in connection with consulting or advisory services not in excess of 5,000,000 shares Agreement and (viii) the payment of any principal in shares of Common Stock pursuant issuable upon the conversion of said note; and (v) any shares of Common Stock issued upon the exercise of the warrant issued to this Note or Xxxxxx Xxxxx for the Other Notestransactions contemplated by the Purchase Agreement.

Certain Issues Excepted. Anything herein to the contrary notwithstanding, the Maker shall not be required to make any adjustment to the Conversion Price in connection with (i) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (ii) securities issued pursuant to a bona fide firm underwritten public offering of the Maker’s securities, (iii) securities issued pursuant to the conversion or exercise of convertible or excercisable securities issued or outstanding on or prior to the date hereof or the Notes and Warrants issued pursuant to the Purchase Agreement (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Holders)Agreement, (iiiiv) the shares of Common Stock issuable upon the exercise of Warrants, (ivv) securities issued in connection with strategic license agreements or other partnering arrangements so long as such issuances are not for the purpose of raising capital, (vvi) Common Stock issued or the issuance or grants of options to purchase Common Stock granted or issued pursuant to the Company's stock option plans and Maker’s employee stock purchase plans as they now exist on and stock incentive plans as they now exist or as may be amended so long as the date hereofaggregate number of shares of Common Stock issued pursuant to such stock incentive plans does not exceed 8,000,000, (vivii) any warrants issued to the placement agent and its designees for the transactions contemplated by the Purchase Agreement, (vii) Common Stock issued in connection with consulting or advisory services not in excess of 5,000,000 shares and (viii) the payment of any principal and accrued interest in shares of Common Stock pursuant to this Note or the Other Notes.

Certain Issues Excepted. Anything herein to the contrary notwithstanding, the Maker Company shall not be required to make any adjustment to the Conversion Exercise Price in connection with upon (i) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (ii) securities issued pursuant to the conversion or exercise of convertible or excercisable exercisable securities issued or outstanding on or prior to the date hereof of the Purchase Agreement or the Notes and Warrants issued pursuant to the Purchase Agreement (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Holdersholders), (iii) the shares of Common Stock issuable upon the exercise of Warrants, (iv) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as such issuances are not primarily for the purpose of raising capital, (viv) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the CompanyIssuer's stock option plans and employee stock purchase plans outstanding as they now exist on the date hereofof the Purchase Agreement, (v) Common Stock issued as payment of dividends on the Series A Preferred Stock and (vi) any warrants issued to the placement agent and its designees for the transactions contemplated by the Purchase Agreement, (vii) Common Stock issued in connection with consulting or advisory services not in excess of 5,000,000 shares and (viii) the payment of any principal in shares of Common Stock pursuant to this Note or the Other Notes.

Certain Issues Excepted. Anything herein to the contrary ------------------------- notwithstanding, the Maker shall not be required to make any adjustment to the Conversion Price in connection with (i) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (ii) securities issued pursuant to the conversion or exercise of convertible or excercisable exercisable securities issued or outstanding on or prior to the date hereof of the Purchase Agreement or the Notes and Warrants issued pursuant to the Purchase Agreement (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the HoldersHolder), (iii) the shares of Common Stock issuable upon the exercise of Warrants, (iv) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as such issuances are not for the purpose of raising capital, (v) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the CompanyMaker's stock option plans and employee stock purchase plans outstanding as they now exist on the date hereofIssuance Date, and (vi) any warrants issued to the placement agent and its designees for the transactions contemplated by the Purchase Agreement, (vii) Common Stock issued in connection with consulting or advisory services not in excess of 5,000,000 shares and (viii) the payment of any principal in shares of Common Stock pursuant to this Note or the Other Notes.

Certain Issues Excepted. Anything herein to the contrary notwithstanding, the Maker shall not be required to make any adjustment to the Conversion Price in connection with (i) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (ii) securities issued pursuant to a bona fide firm underwritten public offering of the Maker’s securities, (iii) securities issued pursuant to the conversion or exercise of convertible or excercisable securities issued or outstanding on or prior to the date hereof or the Notes and Warrants issued pursuant to the Purchase Agreement (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Holders)Agreement, (iiiiv) the shares of Common Stock issuable upon the exercise of Warrants, (ivv) securities issued in connection with strategic license agreements or other partnering arrangements so long as such issuances are not for the purpose of raising capital, (vvi) Common Stock issued or the issuance or grants of options to purchase Common Stock granted or issued pursuant to the Company's stock option plans and Maker’s employee stock purchase plans as they now exist on and stock incentive plans as they now exist or as may be amended so long as the date hereofaggregate number of shares of Common Stock issued pursuant to such stock incentive plans does not exceed 8,000,000, (vivii) any warrants issued to the placement agent and its designees for the transactions contemplated by the Purchase Agreement, (vii) Common Stock issued in connection with consulting or advisory services not in excess of 5,000,000 shares and (viii) the payment of any principal and accrued interest in shares of Common Stock pursuant to this Note or the Other 10% Notes.

Certain Issues Excepted. Anything herein to the contrary notwithstanding, the Maker shall not be required to make any adjustment to the Conversion Price in connection with (i) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (ii) securities issued pursuant to a bona fide firm underwritten public offering of the Maker's securities, (iii) securities issued pursuant to the conversion or exercise of convertible or excercisable exercisable securities issued or outstanding on or prior to the date hereof or the Notes and Warrants issued pursuant to the Purchase Agreement (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Holders)Agreement, (iiiiv) the shares of Common Stock issuable upon the exercise of Warrants, (ivv) securities issued in connection with strategic license agreements or other partnering arrangements so long as such issuances are not for the purpose of raising capital, (vvi) Common Stock issued or the issuance or grants of options to purchase Common Stock granted or issued pursuant to the CompanyMaker's stock option plans and employee stock purchase plans as they now exist on the date hereofexist, (vivii) any warrants issued to the placement agent and its designees for the transactions contemplated by the Purchase Agreement, (vii) Common Stock issued in connection with consulting or advisory services not in excess of 5,000,000 shares and (viii) the payment of any principal and accrued interest in shares of Common Stock pursuant to this Note or the Other NotesNote.

Certain Issues Excepted. Anything herein to the contrary notwithstanding, the Maker shall not be required to make any adjustment to the Conversion Price in connection with (i) securities issued (other than for cash) in connection with pursuant to a merger, acquisition, or consolidationbona fide firm underwritten public offering of the Maker's securities, (ii) securities issued pursuant to the conversion or exercise of convertible or excercisable exercisable securities issued or outstanding on or prior to the date hereof Issuance Date or the Notes and Warrants issued pursuant to the Purchase Agreement (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the HoldersHolder), (iii) the shares of Common Stock issuable upon the exercise of the Warrants, (iv) securities issued (other than for cash) in connection with an acquisition of the Maker, (v) any warrants issued to the placement agent for the transactions contemplated by the Purchase Agreement or in connection with other financial services rendered to the Maker, (vi) securities issued in connection with strategic license agreements or and other partnering arrangements so long as such issuances are not for the purpose of raising capital, (vvii) the issuance of Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the CompanyMaker's stock option plans and employee stock purchase plans as they now exist outstanding on the date hereof, (vi) any warrants issued to the placement agent hereof and its designees for the transactions contemplated which have been approved by the Purchase AgreementMaker's Board of Directors, (vii) Common Stock issued in connection with consulting or advisory services not in excess of 5,000,000 shares and (viii) the payment of any principal in shares of Common Stock pursuant to this Note or and the Other Notes.

Certain Issues Excepted. Anything herein to the contrary notwithstanding, the Maker shall not be required to make any adjustment to the Conversion Price in connection with (i) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (ii) securities issued pursuant to a bona fide firm underwritten public offering of the Maker's securities, (iii) securities issued pursuant to the conversion or exercise of convertible or excercisable securities issued or outstanding on or prior to the date hereof or the Notes and Warrants issued pursuant to the Purchase Agreement (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Holders)Agreement, (iiiiv) the shares of Common Stock issuable upon the exercise of Warrants, (ivv) securities issued in connection with strategic license agreements or other partnering arrangements so long as such issuances are not for the purpose of raising capital, (vvi) Common Stock issued or the issuance or grants of options to purchase Common Stock granted or issued pursuant to the CompanyMaker's stock option plans and employee stock purchase plans as they now exist on the date hereofand stock incentive plans as they now exist, (vivii) any warrants issued to the placement agent and its designees for the transactions contemplated by the Purchase Agreement, (vii) Common Stock issued in connection with consulting or advisory services not in excess of 5,000,000 shares and (viii) the payment of any principal and accrued interest in shares of Common Stock pursuant to this Note or the Other Notes.

Certain Issues Excepted. Anything herein to the contrary notwithstanding, the Maker Issuer shall not be required to make any adjustment to the Conversion Warrant Price in connection with pursuant to Sections 4(d) or 4(e) hereof upon (i) securities issued (other than for cash) in connection with a merger, acquisition, or consolidation, (ii) securities issued pursuant to the conversion or exercise of convertible or excercisable exercisable securities issued or outstanding on or prior to the date hereof or the Notes and Warrants issued pursuant to the Purchase Agreement Original Issue Date (so long as the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Holders), (iii) the shares of Common Stock issuable upon the exercise of Warrants, (iv) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as such issuances are not for the purpose of raising capital, (viv) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company's stock option plans and employee stock purchase plans as they now exist on the date hereof, (vi) any warrants issued to the placement agent and its designees for the transactions contemplated by the Purchase Agreement, (vii) Common Stock issued in connection with consulting or advisory services not in excess of 5,000,000 shares and (viii) the payment of any principal in shares of Common Stock or options issued to employees, officers, consultants or directors of the Company pursuant to this Note any stock or option plan duly adopted for such purpose by (A) a majority of the Other Notesnon-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose and (B) a majority of the Company’s stockholders (provided that any such issuances to employees, officers, consultants or directors shall be restricted with no registration rights, and shall not exceed 750,000 shares and/or options, in the aggregate (as adjusted for any stock dividend, stock split, stock combination, reclassification or similar transaction)) and (vi) securities issued as payment of dividends on the Series B Convertible Preferred Stock issued pursuant to the Purchase Agreement.