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 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.

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 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 Companyconsolidation, (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 hereof 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 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 Company’s 's stock option plans and employee stock purchase plans that either (x) outstanding as they exist on the date of Issuance Date, (vi) any warrants issued to the placement agent and its designees for the transactions contemplated by the Purchase Agreement, or (yvii) do not exceed fifteen percent (15%) the payment of any dividends on 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)Maker's Series B convertible preferred stock, (ivviii) securities issued in connection with pursuant to a 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 firm underwritten public offering of the whole transaction Maker's securities, (ix) the payment of liquidated damages pursuant to which they are a part to be in the best interests of Registration Rights Agreement dated February 17, 2004 between the Company, Maker and the parties listed therein and (vx) a Qualified Financingthe issuance of Common Stock upon the exercise or conversion of any securities described in clauses (i) through (viii) above.