Common use of Exceptions to Adjustment Clause in Contracts

Exceptions to Adjustment. Notwithstanding the provisions of Sections 5.3 and 5.4, no adjustment to the Exercise Price shall be effected as a result of an Excepted Issuance. “Excepted Issuances” shall mean any issuance of any shares of Common Stock, options or convertible securities issued or issuable: (i) in connection with any Approved Stock Plan (as defined in the Note); provided that the option term, exercise price or similar provisions of any issuances pursuant to such Approved Stock Plan are not amended, modified or changed on or after the Issue Date; (ii) in connection with mergers, acquisitions, strategic licensing arrangements, strategic business partnerships or joint ventures, in each case with non-affiliated third parties and otherwise on an arm’s-length basis, the purpose of which is not to raise additional capital; provided, that such third parties are not granted any registration rights; (iii) pursuant to the Transaction Documents (as defined in the Purchase Agreement; and (iv) to pay regular salaries of key employees or service providers as deemed necessary or appropriate by the Board of Directors to preserve cash. Notwithstanding the foregoing, any Common Stock issued or issuable to raise capital for the Company or its Subsidiaries, directly or indirectly, in connection with any transaction contemplated by clause (ii) above, including, without limitation, securities issued in one or more related transactions or that result in similar economic consequences, shall not be deemed to be an Excepted Issuance.

Exceptions to Adjustment. Notwithstanding the provisions of Sections 5.3 and 5.4, no adjustment to the Exercise Price shall be effected as a result of an Excepted Issuance. “Excepted Issuances” shall mean any issuance of any shares of Common Stock, options or convertible securities issued or issuable: (ia) in connection with any Approved Stock Plan (as defined in the Note); provided that the option term, exercise price or similar provisions of any issuances pursuant to such Approved Stock Plan are not amended, modified or changed on or after the Issue Date; (iib) in connection with mergers, acquisitions, strategic licensing arrangements, strategic business partnerships or joint ventures, in each case with non-affiliated third parties and otherwise on an arm’s-length basis, the purpose of which is not to raise additional capital; provided, that such third parties are not granted any registration rights; (iiic) pursuant to the Transaction Documents (as defined in the Purchase Agreement; and (ivd) to pay regular salaries of key employees or service providers as deemed necessary or appropriate by the Board of Directors to preserve cash. Notwithstanding the foregoing, any Common Stock issued or issuable to raise capital for the Company or its Subsidiaries, directly or indirectly, in connection with any transaction contemplated by clause (iib) above, including, without limitation, securities issued in one or more related transactions or that result in similar economic consequences, shall not be deemed to be an Excepted Issuance.