Common use of Certain Issues Excepted Clause in Contracts

Certain Issues Excepted. Anything herein to the contrary notwithstanding, the Maker shall not be required to make any adjustment to the Conversion Price in connection with the following: (a) issuances of shares of Common Stock or options to employees, officers or directors of the Maker pursuant to any stock or option plan existing on the date hereof (and not amended to increase the shares available for grant or issuance 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, in the case of any options, the exercise price of such options are in excess of the closing price of the Common Stock on the date of grant; (b) 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, and (c) securities issued pursuant to acquisitions or strategic transactions, provided any such issuance shall only be to a person which is, itself or through its subsidiaries, an operating company in a business synergistic with the business of the Maker and in which the Maker receives benefits in addition to the investment of funds, but shall not include a transaction in which the Maker is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities.

Certain Issues Excepted. Anything herein to the contrary notwithstanding, the Maker Company shall not be required to make any adjustment to the Conversion Price in connection with the following: (a) issuances of shares of Common Stock or options to consultants, employees, officers or directors of the Maker Company pursuant to any stock or option plan existing on plan, in an aggregate amount not to exceed options to acquire more than 10% of the date hereof (outstanding Common Stock in any calendar year, if and not amended to increase the shares available for grant or issuance thereunder) if extent such grants were are duly approved by a majority of the non-employee members of the Board of Directors of the Maker Company or a majority of the members of a committee of non-employee directors established for such purpose and, in the case of any options, the exercise price of such options are in excess of the closing price of the Common Stock on the date of grant; (b) 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, and (c) securities issued pursuant to acquisitions or strategic transactions, provided any such issuance shall only be to a person which is, itself or through its subsidiaries, an operating company in a business synergistic with the business of the Maker Company and in which the Maker Company receives benefits in addition to the investment of funds, but shall not include a transaction in which the Maker Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities, or (d) to Holder or its affiliates.

Certain Issues Excepted. Anything herein to the contrary notwithstanding, the Maker shall not be required to make any adjustment to the Conversion Price in connection with the following: (a) issuances of shares of Common Stock or options to consultants, employees, officers or directors of the Maker Holdings pursuant to any stock or option plan existing on plan, in an aggregate amount not to exceed options to acquire more than 10% of the date hereof (outstanding Common Stock in any calendar year, if and not amended to increase the shares available for grant or issuance thereunder) if extent such grants were are duly approved by a majority of the non-employee members of the Board of Directors of the Maker Holdings or a majority of the members of a committee of non-employee directors established for such purpose and, in the case of any options, the exercise price of such options are in excess of the closing price of the Common Stock on the date of grant; (b) 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, and (c) securities issued pursuant to acquisitions or strategic transactions, provided any such issuance shall only be to a person which is, itself or through its subsidiaries, an operating company in a business synergistic with the business of the Maker Holdings and in which the Maker Holdings receives benefits in addition to the investment of funds, but shall not include a transaction in which the Maker Holdings is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities, or (d) to Holder or its affiliates.