Common use of Certain Issues Excepted Clause in Contracts

Certain Issues Excepted. Anything herein to the contrary notwithstanding, the Issuer shall not be required to make any adjustment to the Warrant Price upon (i) securities issued pursuant to a bona fide acquisition of another business entity or business segment of any such entity by the Issuer pursuant to a merger, purchase of substantially all the assets or any type of reorganization (each an “Acquisition”) provided that (A) the Issuer will own more than fifty percent (50%) of the voting power of such business entity or business segment of such entity and (B) such Acquisition is approved by the Board; (ii) securities issued pursuant to Common Stock Equivalents issued or outstanding on or prior to the date of the Purchase Agreement or issued pursuant to the Purchase Agreement (so long as the terms governing the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Holder); (iii) 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; (iv) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to equity incentive plans that are adopted by the Board; and (v) securities issued to any placement agent and its respective designees for the transactions contemplated by the Purchase Agreement; (vi) securities issued to advisors or consultants (including, without limitation, financial advisors and investor relations firms) in connection with any engagement letter or consulting agreement, provided that any such issuance is approved by the Board; (vii) securities issued to financial institutions or lessors in connection with reasonable commercial credit arrangements, equipment financings or similar transactions, provided that any such issue is approved by the Board of Directors; (viii) securities issued to vendors or customers or to other persons in similar commercial situations as the Company, provided that any such issue is approved by the Board of Directors; and (ix) securities issued in connection with any recapitalization. 例外事项。尽管本期权书有任何相反的规定，发行人不应被要求对期权行权价进行任何调整，如果(i)因发行人合并、实质买入全部资产或任何种类的重组（分别称为“并购”）而善意取得其他经营实体或其业务部门而发行证券，如果(A)发行人将拥有该等经营实体或其业务部门大于百分之五十（50%）的表决权且(B)该等并购经董事会批准；(ii)因转换或行使在购买协议之日或之前已发行的普通股认购权或根据购买协议（只要其规定该等证券的转换或行权价格的条款未修订为降低该等价格或对持有人不利）而发行证券；(iii)因善意战略许可协议或其他合作安排而发行证券，只要该等发行不以筹集资金为目的；(iv)因董事会通过的股权激励计划而发行普通股或发行或授权普通股的买入权；和(v)为完成购买协议项下的交易向任何私募代理人及其指定人发行证券；(vi)根据聘用函或咨询协议向顾问或咨询人（包括但不限于财务顾问和投资者关系公司）发行证券，以该发行经董事会批准为前提；(vii)根据商业信用安排、设备融资或类似交易向金融机构或出租人发行证券，以该发行经董事会批准为前提；(viii)向卖主或消费者或其他与公司类似商业境遇的个人发行证券，以该发行经董事会批准为前提；和(ix)与资本结构调整相关的证券发行。

Certain Issues Excepted. Anything herein to the contrary notwithstanding, the Issuer shall not be required to make any adjustment to the Warrant Price upon (i) securities issued pursuant to a bona fide acquisition of another business entity or business segment of any such entity by the Issuer pursuant to a merger, purchase of substantially all the assets or any type of reorganization (each an “Acquisition”) provided that (A) the Issuer will own more than fifty percent (50%) of the voting power of such business entity or business segment of such entity and (B) such Acquisition is approved by the Board; (ii) securities issued pursuant to Common Stock Equivalents issued or outstanding on or prior to the date of the Purchase Agreement or issued pursuant to the Purchase Agreement (so long as the terms governing the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Holder); (iii) 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; (iv) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to equity incentive plans that are adopted by the Board; and (v) securities issued to any placement agent and its respective designees for the transactions contemplated by the Purchase Agreement; (vi) securities issued to advisors or consultants (including, without limitation, financial advisors and investor relations firms) in i connection with any engagement letter or consulting agreement, provided that any such issuance is approved by the Board; (vii) securities issued to financial institutions or lessors in connection with reasonable commercial credit arrangements, equipment financings or similar transactions, provided that any such issue is approved by the Board of Directors; (viii) securities issued to vendors or customers or to other persons in similar commercial situations as the Company, provided that any such issue is approved by the Board of Directors; and (ix) securities issued in connection with any recapitalization. 例外事项。尽管本期权书有任何相反的规定，发行人不应被要求对期权行权价进行任何调整，如果(i)因发行人合并、实质买入全部资产或任何种类的重组（分别称为“并购”）而善意取得其他经营实体或其业务部门而发行证券，如果(A)发行人将拥有该等经营实体或其业务部门大于百分之五十（50%）的表决权且(B)该等并购经董事会批准；(ii)因转换或行使在购买协议之日或之前已发行的普通股认购权或根据购买协议（只要其规定该等证券的转换或行权价格的条款未修订为降低该等价格或对持有人不利）而发行证券；(iii)因善意战略许可协议或其他合作安排而发行证券，只要该等发行不以筹集资金为目的；(iv)因董事会通过的股权激励计划而发行普通股或发行或授权普通股的买入权；和(v)为完成购买协议项下的交易向任何私募代理人及其指定人发行证券；(vi)根据聘用函或咨询协议向顾问或咨询人（包括但不限于财务顾问和投资者关系公司）发行证券，以该发行经董事会批准为前提；(vii)根据商业信用安排、设备融资或类似交易向金融机构或出租人发行证券，以该发行经董事会批准为前提；(viii)向卖主或消费者或其他与公司类似商业境遇的个人发行证券，以该发行经董事会批准为前提；和(ix)与资本结构调整相关的证券发行。

Certain Issues Excepted. Anything herein to the contrary notwithstanding, the Issuer shall not be required to make any adjustment to the Warrant Price upon (i) securities issued pursuant to a bona fide acquisition of another business entity or business segment of any such entity by the Issuer pursuant to a merger, purchase of substantially all the assets or any type of reorganization (each an “Acquisition”) provided that (A) the Issuer will own more than fifty percent (50%) of the voting power of such business entity or business segment of such entity and (B) such Acquisition is approved by the Board; (ii) securities issued pursuant to Common Stock Equivalents issued or outstanding on or prior to the date of the Purchase Agreement or issued pursuant to the Purchase Agreement (so long as the terms governing the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Holder); (iii) 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; (iv) Common Stock issued or the issuance or grants of options to purchase Common Stock Stock, in each case, at no less than the then-applicable fair market value, pursuant to equity incentive plans that are adopted by the BoardCompany’s Board of Directors; provided, however, that during a period ending on the third (3rd) anniversary of the Issuance Date, such issuances shall not exceed ten percent (10%) of the issued and outstanding shares of Common Stock of the Company in the aggregate; (v) securities issued to any placement agent and its respective designees for the transactions contemplated by the Securities Purchase Agreement; (vi) securities issued at no less than the then-applicable fair market value to advisors or consultants (including, without limitation, financial advisors and investor relations firms) in connection with any engagement letter or consulting agreement, provided that any such issuance is approved by the BoardBoard of Directors; provided, further, that during a period ending on the third (3rd) anniversary of the Issuance Date, such issuances shall not exceed five percent (5%) of the issued and outstanding shares of Common Stock of the Company in the aggregate; (vii) securities issued to financial institutions or lessors in connection with reasonable commercial credit arrangements, equipment financings or similar transactions, provided that any such issue is approved by the Board of DirectorsBoard; (viii) securities issued to vendors or customers or to other persons in similar commercial situations as the Company, provided that any such issue is approved by the Board of DirectorsBoard; and (ix) securities issued in connection with any recapitalization. 例外事项。尽管本期权书有任何相反的规定，发行人不应被要求对期权行权价进行任何调整，如果(i)因发行人合并、实质买入全部资产或任何种类的重组（分别称为“并购”）而善意取得其他经营实体或其业务部门而发行证券，如果(A)发行人将拥有该等经营实体或其业务部门大于百分之五十（50%）的表决权且(B)该等并购经董事会批准；(ii)因转换或行使在购买协议之日或之前已发行的普通股认购权或根据购买协议（只要其规定该等证券的转换或行权价格的条款未修订为降低该等价格或对持有人不利）而发行证券；(iii)因善意战略许可协议或其他合作安排而发行证券，只要该等发行不以筹集资金为目的；(iv)因董事会通过的股权激励计划而发行普通股或发行或授权普通股的买入权；和(v)为完成购买协议项下的交易向任何私募代理人及其指定人发行证券；(vi)根据聘用函或咨询协议向顾问或咨询人（包括但不限于财务顾问和投资者关系公司）发行证券，以该发行经董事会批准为前提；(vii)根据商业信用安排、设备融资或类似交易向金融机构或出租人发行证券，以该发行经董事会批准为前提；(viii)向卖主或消费者或其他与公司类似商业境遇的个人发行证券，以该发行经董事会批准为前提；和(ix)与资本结构调整相关的证券发行。.

Certain Issues Excepted. Anything herein to the contrary ----------------------- notwithstanding, the Issuer Company shall not be required to make any adjustment to of the Warrant Purchase Price upon in the case of (i) securities issued pursuant to a bona fide acquisition the issuance of another business entity or business segment of any such entity by Common Stock upon the Issuer pursuant to a merger, purchase of substantially all the assets or any type of reorganization (each an “Acquisition”) provided that (A) the Issuer will own more than fifty percent (50%) exercise of the voting power of such business entity or business segment of such entity and Equity Sponsor Warrants (B) such Acquisition is approved by as defined in the Board; (ii) securities issued pursuant to Common Stock Equivalents issued or outstanding on or prior to the date of the Purchase Agreement or issued pursuant to the Purchase Agreement (Note Agreement), so long as the terms governing of such Equity Sponsor Warrants, as in effect on the conversion or exercise price in such securities date hereof, are not amended or modified, (ii) the grant of Options after the date of the consummation by the Company of an Initial Public Offering to lower such price and/or adversely affect employees, officers, or directors of the Holder); (iii) securities issued in connection with bona fide strategic license agreements Company or other partnering arrangements so long as such issuances are not for the purpose of raising capital; (iv) Common Stock issued or the issuance or grants of options to purchase Common Stock any Subsidiary pursuant to equity incentive plans that are adopted by the Board; and (v) securities issued to any placement agent and its respective designees for the transactions contemplated by the Purchase Agreement; (vi) securities issued to advisors or consultants (including, without limitation, financial advisors and investor relations firms) in connection with any engagement letter or consulting agreement, provided that any such issuance is approved by the Board; (vii) securities issued to financial institutions or lessors in connection with reasonable commercial credit arrangements, equipment financings or similar transactions, provided that any such issue is option plan approved by the Board of Directors; Directors of the Company to purchase up to an aggregate of 14,375 shares of Common Stock and the issuance of Common Stock upon the exercise of such Options, (viiiiii) securities issued the issuance of 25,000 shares of Class A Series 2 Preferred Stock to vendors or customers or Banc One pursuant to other persons in similar commercial situations that certain Purchase Agreement dated as of November 7, 1997 (the "Purchase Agreement"), among the Company, provided that any Banc One and Primus Capital Fund III Limited Partnership ("Primus"), and the issuance of Common Stock upon the conversion of such issue is approved by Class A Series 2 Preferred Stock, so long as the Board terms of Directors; such Class A Series 2 Preferred Stock, as in effect on the date hereof, are not amended or modified, (iv) the issuance of 25,000 shares of Class A Series 3 Preferred Stock to Primus pursuant to the Purchase Agreement, and the issuance of Common Stock upon the conversion of such Class A Series 3 Preferred Stock, so long as the terms of such Class A Series 3 Preferred Stock, as in effect on the date hereof, are not amended or modified, and (ixv) securities issued the issuance of Common Stock upon the exercise of the Warrants (as defined in connection with any recapitalization. 例外事项。尽管本期权书有任何相反的规定，发行人不应被要求对期权行权价进行任何调整，如果(i)因发行人合并、实质买入全部资产或任何种类的重组（分别称为“并购”）而善意取得其他经营实体或其业务部门而发行证券，如果(A)发行人将拥有该等经营实体或其业务部门大于百分之五十（50%）的表决权且(B)该等并购经董事会批准；(ii)因转换或行使在购买协议之日或之前已发行的普通股认购权或根据购买协议（只要其规定该等证券的转换或行权价格的条款未修订为降低该等价格或对持有人不利）而发行证券；(iii)因善意战略许可协议或其他合作安排而发行证券，只要该等发行不以筹集资金为目的；(iv)因董事会通过的股权激励计划而发行普通股或发行或授权普通股的买入权；和(v)为完成购买协议项下的交易向任何私募代理人及其指定人发行证券；(vi)根据聘用函或咨询协议向顾问或咨询人（包括但不限于财务顾问和投资者关系公司）发行证券，以该发行经董事会批准为前提；(vii)根据商业信用安排、设备融资或类似交易向金融机构或出租人发行证券，以该发行经董事会批准为前提；(viii)向卖主或消费者或其他与公司类似商业境遇的个人发行证券，以该发行经董事会批准为前提；和(ix)与资本结构调整相关的证券发行。the Note Agreement), so long as the terms of such Warrants, as in effect on the date hereof, are not amended or modified.

Certain Issues Excepted. Anything herein to the contrary ----------------------- notwithstanding, the Issuer Company shall not be required to make any adjustment to of the Warrant Purchase Price upon in the case of (i) securities issued pursuant to a bona fide acquisition the issuance of another business entity or business segment of any such entity by Common Stock upon the Issuer pursuant to a merger, purchase of substantially all the assets or any type of reorganization (each an “Acquisition”) provided that (A) the Issuer will own more than fifty percent (50%) exercise of the voting power of such business entity or business segment of such entity and Equity Sponsor Warrants (B) such Acquisition is approved by as defined in the Board; (ii) securities issued pursuant to Common Stock Equivalents issued or outstanding on or prior to the date of the Purchase Agreement or issued pursuant to the Purchase Agreement (Note Agreement), so long as the terms governing of such Equity Sponsor Warrants, as in effect on the conversion or exercise price in such securities date hereof, are not amended or modified, (ii) the grant of Options after the date of the consummation by the Company of an Initial Public Offering to lower such price and/or adversely affect employees, officers, or directors of the Holder); (iii) securities issued in connection with bona fide strategic license agreements Company or other partnering arrangements so long as such issuances are not for the purpose of raising capital; (iv) Common Stock issued or the issuance or grants of options to purchase Common Stock any Subsidiary pursuant to equity incentive plans that are adopted by the Board; and (v) securities issued to any placement agent and its respective designees for the transactions contemplated by the Purchase Agreement; (vi) securities issued to advisors or consultants (including, without limitation, financial advisors and investor relations firms) in connection with any engagement letter or consulting agreement, provided that any such issuance is approved by the Board; (vii) securities issued to financial institutions or lessors in connection with reasonable commercial credit arrangements, equipment financings or similar transactions, provided that any such issue is option plan approved by the Board of Directors; Directors of the Company to purchase up to an aggregate of 14,375 shares of Common Stock and the issuance of Common Stock upon the exercise of such Options, (viiiiii) securities issued the issuance of 25,000 shares of Class A Series 2 Preferred Stock to vendors or customers or Banc One Capital Partners II, Limited Liability Company ("Banc One") pursuant to other persons in similar commercial situations that certain Purchase Agreement dated as of November 7, 1997 (the "Purchase Agreement"), among the Company, provided that any Banc One and Primus, and the issuance of Common Stock upon the conversion of such issue is approved by Class A Series 2 Preferred Stock, so long as the Board terms of Directors; such Class A Series 2 Preferred Stock, as in effect on the date hereof, are not amended or modified, (iv) the issuance of 25,000 shares of Class A Series 3 Preferred Stock to Primus pursuant to the Purchase Agreement, and the issuance of Common Stock upon the conversion of such Class A Series 3 Preferred Stock, so long as the terms of such Class A Series 3 Preferred Stock, as in effect on the date hereof, are not amended or modified, and (ixv) securities issued the issuance of Common Stock upon the exercise of the Warrants (as defined in connection with any recapitalization. 例外事项。尽管本期权书有任何相反的规定，发行人不应被要求对期权行权价进行任何调整，如果(i)因发行人合并、实质买入全部资产或任何种类的重组（分别称为“并购”）而善意取得其他经营实体或其业务部门而发行证券，如果(A)发行人将拥有该等经营实体或其业务部门大于百分之五十（50%）的表决权且(B)该等并购经董事会批准；(ii)因转换或行使在购买协议之日或之前已发行的普通股认购权或根据购买协议（只要其规定该等证券的转换或行权价格的条款未修订为降低该等价格或对持有人不利）而发行证券；(iii)因善意战略许可协议或其他合作安排而发行证券，只要该等发行不以筹集资金为目的；(iv)因董事会通过的股权激励计划而发行普通股或发行或授权普通股的买入权；和(v)为完成购买协议项下的交易向任何私募代理人及其指定人发行证券；(vi)根据聘用函或咨询协议向顾问或咨询人（包括但不限于财务顾问和投资者关系公司）发行证券，以该发行经董事会批准为前提；(vii)根据商业信用安排、设备融资或类似交易向金融机构或出租人发行证券，以该发行经董事会批准为前提；(viii)向卖主或消费者或其他与公司类似商业境遇的个人发行证券，以该发行经董事会批准为前提；和(ix)与资本结构调整相关的证券发行。the Note Agreement), so long as the terms of such Warrants, as in effect on the date hereof, are not amended or modified.

Certain Issues Excepted. Anything herein to the contrary notwithstanding, the Issuer Maker shall not be required to make any adjustment to the Warrant Conversion Price upon in connection with: (i) securities issued pursuant to a bona fide acquisition of another business entity or business segment of any such entity by the Issuer pursuant to (other than for cash) in connection with a merger, purchase of substantially all the assets acquisition, or any type of reorganization (each an “Acquisition”) provided that (A) the Issuer will own more than fifty percent (50%) of the voting power of such business entity or business segment of such entity and (B) such Acquisition is approved by the Boardconsolidation; (ii) securities issued or issuable pursuant to Common Stock Equivalents the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of the Purchase Agreement or issued pursuant to the Purchase Agreement hereof (so long as the terms governing the conversion or exercise price in such securities are not amended amended, except in connection with the issuance of the Promissory Notes and Warrants, to lower such price and/or adversely affect the HolderHolders), pursuant to the conversion of the Series C Convertible Preferred Stock, or in connection with the issuance of the Promissory Notes (including, without limitation, pursuant to the Purchase Agreement or that certain Exchange Agreement, dated as of April 3, 2008, by and among the Maker and the holders signatory thereto (the “Exchange Agreement”), or otherwise in connection with the conversion of Maker’s Series A Preferred Stock); (iii) securities convertible into Common Stock issued in lieu of cash interest payments to holders of the Maker’s securities entitled to interest; (iv) securities issued in connection with bona fide strategic license collaborations, development agreements or other partnering arrangements so long as such issuances are not for the purpose of raising capital; (iv) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to equity incentive plans that are adopted by the Board; and (v) securities issued to any placement agent and its respective designees for the licensing transactions contemplated by the Purchase Agreement; (vi) securities issued to advisors or consultants (including, without limitation, financial advisors and investor relations firms) in connection with any engagement letter or consulting agreement, provided that any such issuance is approved by the Board; (viiv) securities issued to financial institutions or lessors in connection with reasonable commercial credit arrangements, equipment financings or similar transactions, provided that any such issue is transactions approved by the Board Maker’s board of Directorsdirectors; (vi) securities issued or issuable pursuant to any Maker stock option, stock purchase or other equity incentive plan or agreement approved by the Maker’s board of directors; (vii) any securities issued to any placement agent and/or its designees in connection with any offering or financing of the Maker; (viii) subject to the other provisions of this Section 3.6, securities issued pursuant to vendors any dividends or customers other distributions on the Maker’s securities, any subdivision of outstanding securities into a greater number of such securities, or to other persons in similar commercial situations as the Company, provided that any combination of outstanding securities into a smaller number of such issue is approved by the Board of Directorssecurities; and (ix) securities issued pursuant to a bona fide firm underwritten public offering of the Maker’s securities; (x) securities issuable as a result of the application of similar antidilution provisions in respect of any other securities; (xi) such additional securities as are designated in writing as not requiring any adjustment to the Conversion Price by holders of a majority of the then aggregate outstanding principal amount of this Note taken together with the Additional Notes; and (xii) the issuance of any securities by way of dividend or other distribution, or upon the exercise or conversion of, any securities described in clauses (i) through (xi) above. For purposes of this Note, (A) “Promissory Notes” shall mean collectively, each of the following, as the same may be amended from time to time: (1) the Note, (2) the Additional Notes, and (3) any Additional Notes issued from time to time as interest on the outstanding principal balance of the foregoing promissory notes; and (B) “Warrants” shall mean, collectively, each of the following, as the same may be amended from time to time: (A) the warrants to purchase shares of Common Stock issued in connection with any recapitalization. 例外事项。尽管本期权书有任何相反的规定，发行人不应被要求对期权行权价进行任何调整，如果(i)因发行人合并、实质买入全部资产或任何种类的重组（分别称为“并购”）而善意取得其他经营实体或其业务部门而发行证券，如果(A)发行人将拥有该等经营实体或其业务部门大于百分之五十（50%）的表决权且(B)该等并购经董事会批准；(ii)因转换或行使在购买协议之日或之前已发行的普通股认购权或根据购买协议（只要其规定该等证券的转换或行权价格的条款未修订为降低该等价格或对持有人不利）而发行证券；(iii)因善意战略许可协议或其他合作安排而发行证券，只要该等发行不以筹集资金为目的；(iv)因董事会通过的股权激励计划而发行普通股或发行或授权普通股的买入权；和(v)为完成购买协议项下的交易向任何私募代理人及其指定人发行证券；(vi)根据聘用函或咨询协议向顾问或咨询人（包括但不限于财务顾问和投资者关系公司）发行证券，以该发行经董事会批准为前提；(vii)根据商业信用安排、设备融资或类似交易向金融机构或出租人发行证券，以该发行经董事会批准为前提；(viii)向卖主或消费者或其他与公司类似商业境遇的个人发行证券，以该发行经董事会批准为前提；和(ix)与资本结构调整相关的证券发行。the issuance of the Note and the Additional Notes; and (B) the warrants to purchase shares of Common Stock issued and outstanding on or prior to the date hereof.

Certain Issues Excepted. Anything herein to the contrary notwithstanding, the Issuer Maker shall not be required to make any adjustment to the Warrant Set Price in connection with the following: (a) issuances of options to employees, officers or directors of the Maker pursuant to any compensatory stock option plan existing on the date hereof (and not amended to increase the shares available thereunder) if such grants were duly approved by a majority of the non-employee members of the Board of Directors of the Maker or a majority of the members of a committee of non-employee directors established for such purpose and such options have an exercise price in excess of the Closing Bid Price on the date of grant; (b) the issuance of stock grants or stock bonuses to employees, officers or directors of the Maker pursuant to any compensatory stock option plan existing on the date hereof (and not amended to increase the shares available thereunder) if such issuances were duly approved by a majority of the non-employee members of the Board of Directors of the Maker or a majority of the members of a committee of non-employee directors established for such purpose; (c) issuances of securities upon the exercise or exchange of or conversion of any securities issued hereunder and/or securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the Issuance Date, provided that such securities have not been amended since the Issuance Date to increase the number of such securities or to decrease the exercise, exchange or conversion price of any such securities; (id) securities issued pursuant to a bona fide acquisition of another business entity acquisitions or business segment of strategic transactions, provided any such entity by the Issuer pursuant issuance shall only be to a mergerperson which is, purchase of substantially all itself or through its subsidiaries, an operating company in a business synergistic with the assets or any type of reorganization (each an “Acquisition”) provided that (A) the Issuer will own more than fifty percent (50%) business of the voting power of such business entity or business segment of such entity Maker and (B) such Acquisition is approved by in which the Board; (ii) securities issued pursuant to Common Stock Equivalents issued or outstanding on or prior Maker receives benefits in addition to the date investment of funds, but shall not include a transaction in which the Purchase Agreement or issued pursuant to the Purchase Agreement (so long as the terms governing the conversion or exercise price in such Maker is issuing securities are not amended to lower such price and/or adversely affect the Holder); (iii) 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 capitalcapital or to an entity whose primary business is investing in securities; (ive) shares of Common Stock issued or upon conversion of the issuance or grants of options to purchase Common Stock pursuant to equity incentive plans that are adopted by Note and the Board; Other Notes, the Warrants and (v) securities the warrants issued to any placement agent and its respective designees for the transactions contemplated by Finder on the date hereof as described in the Purchase Agreement; and (vif) securities shares of Common Stock to be issued pursuant to advisors or consultants obligations existing on the date hereof under the License Agreements (including, without limitation, financial advisors existing and investor relations firmsas in effect as of the date hereof) in connection with any engagement letter or consulting agreement, provided that any such issuance is approved by the Board; (vii) securities issued an amount not to financial institutions or lessors in connection with reasonable commercial credit arrangements, equipment financings or similar transactions, provided that any such issue is approved by the Board of Directors; (viii) securities issued to vendors or customers or to other persons in similar commercial situations as the Company, provided that any such issue is approved by the Board of Directors; and (ix) securities issued in connection with any recapitalization. 例外事项。尽管本期权书有任何相反的规定，发行人不应被要求对期权行权价进行任何调整，如果(i)因发行人合并、实质买入全部资产或任何种类的重组（分别称为“并购”）而善意取得其他经营实体或其业务部门而发行证券，如果(A)发行人将拥有该等经营实体或其业务部门大于百分之五十（50%）的表决权且(B)该等并购经董事会批准；(ii)因转换或行使在购买协议之日或之前已发行的普通股认购权或根据购买协议（只要其规定该等证券的转换或行权价格的条款未修订为降低该等价格或对持有人不利）而发行证券；(iii)因善意战略许可协议或其他合作安排而发行证券，只要该等发行不以筹集资金为目的；(iv)因董事会通过的股权激励计划而发行普通股或发行或授权普通股的买入权；和(v)为完成购买协议项下的交易向任何私募代理人及其指定人发行证券；(vi)根据聘用函或咨询协议向顾问或咨询人（包括但不限于财务顾问和投资者关系公司）发行证券，以该发行经董事会批准为前提；(vii)根据商业信用安排、设备融资或类似交易向金融机构或出租人发行证券，以该发行经董事会批准为前提；(viii)向卖主或消费者或其他与公司类似商业境遇的个人发行证券，以该发行经董事会批准为前提；和(ix)与资本结构调整相关的证券发行。exceed 300,000 shares.

Certain Issues Excepted. Anything herein to the contrary notwithstanding, the Issuer Maker shall not be required to make any adjustment to the Warrant Conversion Price upon in connection with (i) securities issued pursuant to a bona fide acquisition of another business entity or business segment of any such entity by the Issuer pursuant to (other than for cash) in connection with a merger, purchase of substantially all the assets acquisition, or any type of reorganization (each an “Acquisition”) provided that (A) the Issuer will own more than fifty percent (50%) of the voting power of such business entity or business segment of such entity and (B) such Acquisition is approved by the Board; consolidation, (ii) securities issued pursuant to Common Stock Equivalents the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of the Purchase Agreement or issued pursuant to the Purchase Agreement hereof (so long as the terms governing the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Holder); Holders) or issued pursuant to the Purchase Agreement, (iii) securities issued pursuant to the terms of that certain Exchange Agreement, dated as of September 21, 2007, by and among the Maker and the holders signatory thereto, (iv) the issuance of the Promissory Notes and the Warrants (each as defined below), (v) the shares of Common Stock issuable upon the conversion of the Promissory Notes or the exercise of the Warrants, (vi) 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; , (ivvii) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to equity incentive the Maker’s stock option plans that are adopted and employee stock purchase plans approved by the Board; and Makers board of directors, so long as such issuances in the aggregate do not exceed the number of shares of Common Stock (vor options to purchase such number of shares of Common Stock) securities issuable pursuant to such plans as they exist on the Issuance Date, (viii) any warrants issued to any the placement agent and its respective designees for the transactions contemplated by the Purchase Agreement; , (viix) the payment of any dividends on the Maker’s Series B convertible preferred stock, (x) securities issued pursuant to advisors a bona fide firm underwritten public offering of the Maker’s securities, (xi) the payment of liquidated damages pursuant to the Registration Rights Agreement dated February 17, 2004 between the Maker and the parties listed therein and (xii) the issuance of Common Stock upon the exercise or consultants conversion of any securities described in clauses (includingi) through (xi) above. For purposes of this Note, without limitation(A) “Promissory Notes” shall mean collectively, financial advisors and investor relations firms) in connection with any engagement letter or consulting agreementeach of the following, provided that any such issuance is approved by the Board; (vii) securities issued to financial institutions or lessors in connection with reasonable commercial credit arrangements, equipment financings or similar transactions, provided that any such issue is approved by the Board of Directors; (viii) securities issued to vendors or customers or to other persons in similar commercial situations as the Companysame may be amended from time to time: (1) the senior secured convertible promissory notes issued pursuant to the that certain Note and Warrant Purchase Agreement, provided dated as of March 31, 2006, by and among the Maker and the purchasers listed therein or that certain Note and Warrant Purchase Agreement, dated as of April 12, 2006, by and among the Maker and the purchasers listed therein (collectively, the “2006 Purchase Agreements”), (2) the additional senior secured convertible promissory notes in the aggregate principal amount of up to $3,600,000 issued pursuant to the Purchase Agreement (collectively with the 2006 Purchase Agreements, the “Purchase Agreements”), and (3) any such issue is approved by additional senior secured convertible promissory notes issued from time to time as interest on the Board outstanding principal balance of Directorsthe foregoing promissory notes; and (ixB) securities “Warrants” shall mean, collectively, each of the following, as the same may be amended from time to time: (A) the warrants to purchase shares of Common Stock issued pursuant to the Purchase Agreements; and (B) the warrants to purchase shares of Common Stock issued in connection with any recapitalization. 例外事项。尽管本期权书有任何相反的规定，发行人不应被要求对期权行权价进行任何调整，如果(i)因发行人合并、实质买入全部资产或任何种类的重组（分别称为“并购”）而善意取得其他经营实体或其业务部门而发行证券，如果(A)发行人将拥有该等经营实体或其业务部门大于百分之五十（50%）的表决权且(B)该等并购经董事会批准；(ii)因转换或行使在购买协议之日或之前已发行的普通股认购权或根据购买协议（只要其规定该等证券的转换或行权价格的条款未修订为降低该等价格或对持有人不利）而发行证券；(iii)因善意战略许可协议或其他合作安排而发行证券，只要该等发行不以筹集资金为目的；(iv)因董事会通过的股权激励计划而发行普通股或发行或授权普通股的买入权；和(v)为完成购买协议项下的交易向任何私募代理人及其指定人发行证券；(vi)根据聘用函或咨询协议向顾问或咨询人（包括但不限于财务顾问和投资者关系公司）发行证券，以该发行经董事会批准为前提；(vii)根据商业信用安排、设备融资或类似交易向金融机构或出租人发行证券，以该发行经董事会批准为前提；(viii)向卖主或消费者或其他与公司类似商业境遇的个人发行证券，以该发行经董事会批准为前提；和(ix)与资本结构调整相关的证券发行。the amendment of the senior secured convertible promissory notes issued pursuant to the 2006 Purchase Agreements.

Certain Issues Excepted. Anything herein to the contrary notwithstanding, the Issuer Company shall not be required to make any adjustment to the Warrant Conversion Price upon in connection with (i) securities shares of Common Stock issued pursuant to a bona fide acquisition transaction described in Section 3.5(a)(iii) hereof; (ii) up to 3,750,000 shares of another business entity Common Stock (as adjusted for any stock splits, stock dividends, combinations, recapitalizations or business segment the like) issued or deemed issued to employees, officers, or directors (if in transactions with primarily non-financing purposes) of any such entity by the Issuer Company directly or pursuant to a merger, stock option plan or restricted stock purchase of substantially all the assets or any type of reorganization (each an “Acquisition”) provided that (A) the Issuer will own more than fifty percent (50%) of the voting power of such business entity or business segment of such entity and (B) such Acquisition is plan approved by the Board; (iiiii) securities shares of Common Stock issued or issuable (I) in a bona fide, firmly underwritten public offering under the Securities Act before which or in connection with which all outstanding shares of the Preferred Stock will be automatically converted to Common Stock, or (II) upon exercise of warrants or rights granted to underwriters in connection with such a public offering; (iv) shares of Common Stock issued pursuant to Common Stock Equivalents issued the conversion or exercise of convertible or exercisable securities outstanding on or prior to as of the date of the Purchase Agreement or subsequently issued pursuant to after the date of the Purchase Agreement (so long as the terms governing the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Holder)accordance with this definition; (iiiv) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as such issuances are not for the purpose shares of raising capital; (iv) Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to equity incentive plans that are adopted by the Board; and (v) securities issued to any placement agent and its respective designees for the transactions contemplated by the Purchase Agreement; (vi) securities issued to advisors or consultants (including, without limitation, financial advisors and investor relations firms) issuable in connection with any engagement letter a bona fide business acquisition of or consulting agreementby the Company, provided that any such issuance is whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, each as approved by the Board; (vi) up to 500,000 shares of Common Stock (as adjusted for any stock splits, stock dividends, combinations, recapitalizations or the like) issued or issuable to persons or entities with which this Issuer has business relationships provided such issuances are for other than primarily equity financing purposes; (vii) securities shares of Common Stock issued to financial institutions or lessors in connection with reasonable commercial credit arrangements, equipment financings or similar transactions, provided that any such issue is approved by the Board of Directors; (viii) securities issued to vendors or customers or to other persons in similar commercial situations as the Company, provided that any such issue is approved by the Board of Directors; and (ix) securities issued issuable in connection with any recapitalization. 例外事项。尽管本期权书有任何相反的规定，发行人不应被要求对期权行权价进行任何调整，如果(i)因发行人合并、实质买入全部资产或任何种类的重组（分别称为“并购”）而善意取得其他经营实体或其业务部门而发行证券，如果(A)发行人将拥有该等经营实体或其业务部门大于百分之五十（50%）的表决权且(B)该等并购经董事会批准；(ii)因转换或行使在购买协议之日或之前已发行的普通股认购权或根据购买协议（只要其规定该等证券的转换或行权价格的条款未修订为降低该等价格或对持有人不利）而发行证券；(iii)因善意战略许可协议或其他合作安排而发行证券，只要该等发行不以筹集资金为目的；(iv)因董事会通过的股权激励计划而发行普通股或发行或授权普通股的买入权；和(v)为完成购买协议项下的交易向任何私募代理人及其指定人发行证券；(vi)根据聘用函或咨询协议向顾问或咨询人（包括但不限于财务顾问和投资者关系公司）发行证券，以该发行经董事会批准为前提；(vii)根据商业信用安排、设备融资或类似交易向金融机构或出租人发行证券，以该发行经董事会批准为前提；(viii)向卖主或消费者或其他与公司类似商业境遇的个人发行证券，以该发行经董事会批准为前提；和(ix)与资本结构调整相关的证券发行。transaction where such securities so issued are excepted from the definition “Additional Shares of Common Stock” by the affirmative vote of the Holders of at least a majority of the principal amount of the Notes issued pursuant to the Purchase Agreement; or (viii) up to 1,332,000 shares of Common Stock (as adjusted for any stock splits, stock dividends, combinations, recapitalizations or the like) issued or issuable to Triple Ring Technologies, Inc. pursuant to warrants issued by the Issuer as of the date hereof as such warrants may be amended by vote of the Audit Committee of the Company.