Common use of Exceptions to Adjustment of Conversion Price Clause in Contracts

Exceptions to Adjustment of Conversion Price. Notwithstanding the foregoing, no adjustment to the Conversion Price shall be made pursuant to this paragraph 4(b) upon the issuance of any Excluded Securities. For purposes hereof, “Excluded Securities” means (I) securities purchased under the Note Purchase Agreement (including all securities issued to any finder or broker for facilitating the purchase of the Notes and the Warrants, the aggregate amount of which shall be identified in writing to the Holder on or before the Issue Date); (II) the Initial Notes; (III) securities issued upon conversion or exercise of the Notes, the Initial Notes or the Warrants; (IV) shares of Common Stock issuable or issued to (x) employees, consultants or directors from time to time upon the exercise of options, in such case granted or to be granted in the discretion of the Board of Directors pursuant to one or more stock option plans or restricted stock plans in effect as of the Issue Date or adopted after the Issue Date by the independent members of the Board of Directors with substantially the same terms as such plans in effect as of the Issue Date, and (y) vendors pursuant to warrants to purchase Common Stock that are outstanding on the date hereof or issued hereafter, provided such issuances are approved by the Board of Directors; (V) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization of the Company; (VI) shares of Common Stock issued in connection with the acquisition by the Company of any corporation or other entity or business unit occurring after the Effective Date; and (VII) shares of Common Stock issued in connection with any Convertible Securities or Purchase Rights outstanding on the Issue Date.

Exceptions to Adjustment of Conversion Price. Notwithstanding the foregoing, no adjustment to the Conversion Price shall be made pursuant to this paragraph 4(b(e) upon the issuance of any Excluded Securities. For purposes hereof, “Excluded Securities” means (I) securities purchased under the Note Securities Purchase Agreement (including all securities issued to any finder or broker for facilitating the purchase of the Notes and the Warrants, the aggregate amount of which shall be identified in writing to the Holder on or before the Issue Date)Agreement; (II) the Initial Notes; (III) securities issued upon conversion or exercise of the Notes, the Initial Notes Debentures or the Warrants; (IVIII) shares of Common Stock issuable or issued to (x) employees, consultants or directors from time to time upon the exercise of options, in such case granted or to be granted in the discretion of the Board of Directors pursuant to one or more stock option plans or restricted stock plans in effect as of the Issue Date or adopted after the Issue Date by the independent members of the Board of Directors with substantially the same terms as such plans in effect as of the Issue Date, and or (y) vendors pursuant to warrants to purchase Common Stock that are outstanding on the date hereof or issued hereafter, provided such issuances are approved by the Board of Directors; (IV) the equity component of a commercial lending transaction with a federally-insured financial institution that is approved by the independent members of the Board of Directors, provided that the fair market value of such equity component, including warrants, options or other rights to purchase capital stock and other interests convertible into capital stock of the Company, does not exceed ten percent (10%) of the amount borrowed; (V) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization of the Company; (VI) shares of Common Stock issued in connection with the acquisition by the Company of any corporation or other entity or business unit occurring after the Effective Date, provided that, if in connection with such acquisition, the Company will issue a number of shares equal to or greater than 20% of the number of shares of Common Stock issued and outstanding immediately prior to the consummation of such acquisition, the Company shall obtain a fairness opinion with respect to such acquisition from an investment bank of national recognition; and (VII) shares of Common Stock issued in connection with any Convertible Securities or Purchase Rights outstanding on the Issue Datedate hereof (and not amended, changed or restated after the date hereof) and disclosed in a schedule to the Securities Purchase Agreement; and (VIII) shares issued to Persons with whom the Company is entering into a joint venture, strategic alliance or other commercial relationship in connection with the operation of the Company’s business and not in connection with a transaction the purpose of which is to raise equity capital.

Exceptions to Adjustment of Conversion Price. Notwithstanding the foregoing, no adjustment to the Conversion Price shall be made pursuant to this paragraph 4(b) upon the issuance of any Excluded Securities. For purposes hereof, “Excluded Securities” means (I) securities purchased under the Note Purchase Agreement (including all securities issued to any finder or broker for facilitating the purchase of the Notes and the Warrants, the aggregate amount of which shall be identified in writing to the Holder on or before the Issue Date); (II) the Initial Notes; (III) securities issued upon conversion or exercise of the Notes, the Initial Notes or the Warrants; (IVIII) shares of Common Stock issuable or issued to (x) employees, consultants or directors from time to time upon the exercise of options, in such case granted or to be granted in the discretion of the Board of Directors pursuant to one or more stock option plans or restricted stock plans in effect as of the Issue Date or adopted after the Issue Date by the independent members of the Board of Directors with substantially the same terms as such plans in effect as of the Issue Date, and (y) vendors pursuant to warrants to purchase Common Stock that are outstanding on the date hereof or issued hereafter, provided such issuances are approved by the Board of Directors; (VIV) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization of the Company; (VIV) shares of Common Stock issued in connection with the acquisition by the Company of any corporation or other entity or business unit occurring after the Effective Date; and (VIIVI) shares of Common Stock issued in connection with any Convertible Securities or Purchase Rights outstanding on the Issue Date.

Exceptions to Adjustment of Conversion Price. Notwithstanding the foregoing, no adjustment to the Conversion Price shall be made pursuant to this paragraph 4(b(e) upon the issuance of any Excluded Securities. For purposes hereof, “Excluded Securities” means (I) securities purchased under the Note Purchase Agreement (including all securities issued to any finder or broker for facilitating the purchase of the Notes Securities and the Warrants, the aggregate amount of which shall be identified in writing to the Holder on or before the Issue Date)Existing Securities; (II) the Initial Notes; (III) securities issued upon conversion or exercise of the Notes, the Initial Notes or the WarrantsExisting Securities; (IVIII) shares of Common Stock issuable or issued to (x) employees, consultants or directors from time to time upon the exercise of options, in such case granted or to be granted in the discretion of the Board of Directors pursuant to one or more stock option plans or restricted stock plans in effect as of the Issue Date or adopted after the Issue Date by the independent members of the Board of Directors with substantially the same terms as such plans in effect as of the Issue Date, and (y) vendors pursuant to warrants to purchase Common Stock that are outstanding on the date hereof or issued hereafter, provided such issuances are approved by the Board of Directors; (IV) any borrowings, direct or indirect, from financial institutions by the Company that are approved by the Board of Directors, including any type of loan or payment evidenced by any type of Debt instrument, provided the value of the equity portion of any such borrowings, including warrants, options or other rights to purchase capital stock and other interests convertible into capital stock of the Company, does not exceed ten percent (10%) of such borrowing; (V) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization of the Company; (VI) shares of Common Stock issued in connection with the acquisition by the Company of any corporation or other entity or business unit occurring after the Effective DateDate and as long as a fairness opinion with respect to such acquisition is rendered by an investment bank of national recognition; and (VII) shares of Common Stock issued in connection with any Convertible Securities or Purchase Rights outstanding on the Issue Datedate hereof, including, without limitation, the Existing Securities; and (VIII) shares issued to Persons with whom the Company is entering into a joint venture, strategic alliance or other commercial relationship in connection with the operation of the Company ‘s business and not in connection with a transaction the purpose of which is to raise equity capital.