Common use of Certain Issues Excepted Clause in Contracts

Certain Issues Excepted. Anything herein to the contrary notwithstanding, the 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 that do not exceed 25% of the outstanding Common Stock of the Company as of the date of the Purchase Agreement (such percentage subject to adjustment in a manner consistent with the adjustments to the Conversion Price contemplated in Section 3 hereof) and such issuances are determined in the light of the whole transaction to which they are a part to be in the best interests of the Company, (ii) securities issued pursuant to 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 (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) 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 that either (x) exist on the date of the Purchase Agreement, or (y) do not exceed fifteen percent (15%) of the outstanding Common Stock of the Company as of the date of the Purchase Agreement (such percentage subject to adjustment in a manner consistent with the adjustments to the Conversion Price contemplated in Section 3 hereof), (iv) securities issued in connection with bona fide strategic license agreements or other partnering agreements so long as such issuances are not for the purpose of raising capital which are approved by a majority of its independent directors and such issuances are determined in the light of the whole transaction to which they are a part to be in the best interests of the Company, and (v) a Qualified Financing.

Certain Issues Excepted. Anything herein to the contrary notwithstanding, the Company Issuer shall not be required to make any adjustment to the Conversion Warrant Price in connection with upon (i) securities issued (other than for cash) in connection with pursuant to a bona fide acquisition of another business entity or business segment of any such entity by the Issuer pursuant to a merger, acquisition, purchase of substantially all the assets or consolidation any type of reorganization (each an “Acquisition”) provided that do not exceed 25% (A) the Issuer will own more than fifty percent (50%) of the outstanding Common Stock voting power of such business entity or business segment of such entity and (B) such Acquisition is approved by the Company as of the date of the Purchase Agreement (such percentage subject to adjustment in a manner consistent with the adjustments to the Conversion Price contemplated in Section 3 hereof) and such issuances are determined in the light of the whole transaction to which they are a part to be in the best interests of the Company, Board; (ii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities 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 HoldersHolder), ; (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 Company’s stock option plans and employee stock purchase plans Board of Directors; provided, however, that either (x) exist during a period ending on the date third (3rd) anniversary of the Purchase AgreementIssuance Date, or (y) do such issuances shall not exceed fifteen ten percent (1510%) of the issued and outstanding shares of Common Stock of the Company as 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 Board of Directors; provided, further, that during a period ending on the third (3rd) anniversary of the date Issuance Date, such issuances shall not exceed five percent (5%) of the Purchase Agreement 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 percentage subject issue is approved by the Board; (viii) securities issued to adjustment vendors or customers or to other persons in a manner consistent with similar commercial situations as the adjustments to Company, provided that any such issue is approved by the Conversion Price contemplated in Section 3 hereof), Board; and (ivix) securities issued in connection with bona fide strategic license agreements or other partnering agreements so long as such issuances are not for the purpose of raising capital which are approved by a majority of its independent directors and such issuances are determined in the light of the whole transaction to which they are a part to be in the best interests of the Company, and (v) a Qualified Financingany recapitalization.

Certain Issues Excepted. Anything herein to the contrary notwithstanding, the Company Maker shall not be required to make any adjustment to the Conversion Price in connection with and the Alternative Conversion Price Floor upon (i) securities issued (other than for cash) the Maker's issuance of any Additional Shares of Common Stock and warrants therefore in connection with a merger, merger and/or acquisition, consolidation, sale or consolidation that do not exceed 25% disposition of all or substantially all of the outstanding Common Stock of the Company as of the date of the Purchase Agreement (such percentage subject to adjustment in a manner consistent with the adjustments to the Conversion Price contemplated in Section 3 hereof) and such issuances are determined in the light of the whole transaction to which they are a part to be in the best interests of the CompanyMaker's assets, (ii) securities issued pursuant to the conversion Maker's issuance of Additional Shares of Common Stock 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 (warrants therefore in connection with strategic license agreements so long as the conversion or exercise price in such securities issuances are not amended to lower such price and/or adversely affect for the Holders)purpose of raising capital, (iii) the Maker's issuance of Common Stock issued or the issuance or grants of options to purchase Common Stock pursuant to the Company’s Maker's stock option plans and employee stock purchase plans that either (x) exist on the date of the Purchase Agreement, or (y) do not exceed fifteen percent (15%) of the outstanding Common Stock of the Company as of the date of the Purchase Agreement (such percentage subject to adjustment in a manner consistent with the adjustments to the Conversion Price contemplated in Section 3 hereof)they now exist, (iv) securities issued in connection with bona fide strategic license agreements the Maker's issuance of Common Stock or other partnering agreements the issuance or grants of options to purchase Common Stock pursuant to any future stock option plan or employee stock purchase plan which is approved by the Board of Directors or any amendment to the Maker's existing stock option plans and employee stock purchase plans which is approved by the Board of Directors so long as such issuances are in the aggregate do not exceed 1,700,000 shares of Common Stock, (v) any transaction where the first use of proceeds from such transaction would be used to redeem all of the shares of the Maker's Series A Preferred Stock in accordance with Section 8(h) of the Certificate of Designation of the Series A Preferred Stock, (vi) the issuance of Common Stock or warrants therefor in connection with any acquisition of assets, product lines or businesses so long as such issuances in the aggregate do not exceed twenty percent (20%) of the Maker's issued and outstanding shares of Common Stock as of the date hereof, (vii) any issuances of Common Stock pursuant to Maker 401(k) matches, (viii) any issuances of securities to consultants, financial advisers, public relations consultants or secured lenders to the Maker so long as such issuances to such secured lenders do not in the aggregate exceed ten percent (10%) of the Maker's issued and outstanding shares of Common Stock as of the date hereof, (ix) any issuances of warrants issued to a Purchaser pursuant to the Purchase Agreement and any issuances of warrants issued to the holders of the Maker's Series A Preferred Stock issued pursuant to the Series A Preferred Stock Purchase Agreement, (x) any warrants issued to X.X. Xxxxxxxxxx & Co., Inc. as placement agent for the purpose transactions contemplated by the Purchase Agreement and the Series A Preferred Stock Purchase Agreement, (xi) the payment of raising capital which are approved by a majority any dividends on the Series A Preferred Stock and the payment of its independent directors and such issuances are determined in any interest on the light Notes, (xii) any securities issued pursuant to Section 3.9 of the whole transaction to which they are a part to be in the best interests Purchase Agreement and Section 3.9 of the CompanySeries A Preferred Stock Purchase Agreement, (xiii) any securities issued to the holders of Series A Preferred Stock as payment of a penalty upon redemption of such shares of Series A Preferred Stock and any securities issued to the holders of the Notes as payment of a penalty upon prepayment of such Notes or otherwise, (xiv) any securities issued pursuant to the Series A Preferred Stock Purchase Agreement, and (vxv) a Qualified Financingthe issuance of common stock upon the exercise or conversion of any securities described in clauses (i) through (xiv) above.

Certain Issues Excepted. Anything herein to the contrary notwithstanding, the Company 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 that do not exceed 25% of the outstanding Common Stock of the Company Maker as of the date of the Purchase Agreement (such percentage subject to adjustment in a manner consistent with the adjustments to the Conversion Price contemplated in Section 3 hereof) and such issuances are determined in the light of the whole transaction to which they are a part to be in the best interests of the Company, (ii) securities issued pursuant to 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 (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 Conversion Shares, (iv) 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 that either (x) exist on the date of the Purchase Agreement, or (y) do not exceed fifteen ten percent (1510%) of the outstanding Common Stock of the Company as of the date of the Purchase Agreement Agreement, (such percentage subject to adjustment in a manner consistent with the adjustments v) any notes issued to the Conversion Price placement agent and its designees for the transactions contemplated in Section 3 hereof)by the Purchase Agreement, and (ivvi) securities issued in connection with bona fide strategic license agreements or other partnering agreements so long as such issuances are not for the purpose of raising capital which are approved by a majority of its independent directors and such issuances are determined in the light of the whole transaction to which they are a part to be in the best interests of the Company, and (v) a Qualified Financing.

Certain Issues Excepted. Anything herein to the contrary notwithstanding, the 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 that do not exceed 25% of the outstanding Common Stock of the Company as of the date of the Purchase Agreement (such percentage subject to adjustment in a manner consistent with the adjustments to the Conversion Price contemplated in Section 3 hereof) and such issuances are determined in the light of the whole transaction to which they are a part to be in the best interests of the Company, (ii) securities issued pursuant to 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 (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 Conversion Shares, (iv) 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 that either (x) exist on the date of the Purchase Agreement, or (y) do not exceed fifteen ten percent (1510%) of the outstanding Common Stock of the Company as of the date of the Purchase Agreement Agreement, (such percentage subject to adjustment in a manner consistent with the adjustments v) any notes issued to the Conversion Price placement agent and its designees for the transactions contemplated in Section 3 hereof)by the Purchase Agreement, and (ivvi) securities issued in connection with bona fide strategic license agreements or other partnering agreements so long as such issuances are not for the purpose of raising capital which are approved by a majority of its independent directors and such issuances are determined in the light of the whole transaction to which they are a part to be in the best interests of the Company, and (v) a Qualified Financing.