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

Exceptions to Adjustment of Exercise Price. Notwithstanding the foregoing, no adjustment to the Exercise Price shall be made pursuant to this paragraph (c) upon the issuance of any Excluded Securities. For purposes hereof, “Excluded Securities” means (I) securities purchased under the Securities Purchase Agreement; (II) securities issued upon conversion of the Preferred Shares or exercise of the Warrants; (III) shares of Common Stock issuable or issued to (x) employees or directors from time to time either directly or upon the exercise of options, in such case granted or to be granted in the discretion of the Board of Directors, as approved by the independent members of the Board, pursuant to one or more stock option plans or restricted stock plans or stock purchase plans in effect as of the Closing Date or approved by the independent members of the Board of Directors or by the Company’s shareholders, or (y) consultants, either directly or pursuant to warrants to purchase Common Stock that are outstanding on the date hereof or issued hereafter, provided such issuances are approved by the independent members of the Board of Directors or by the Company’s shareholders; (IV) shares of Common Stock issued in connection with any Convertible Securities or Purchase Rights outstanding on the date hereof; and (V) shares of Common Stock issued to Persons in connection with a joint venture, strategic alliance or other commercial relationship with such Person relating to the operation of the Company’s business and not for the primary purpose of raising equity capital.

Exceptions to Adjustment of Exercise Price. Notwithstanding the foregoing, no adjustment to the Exercise Price shall be made pursuant to this paragraph (c) upon the issuance of any Excluded Securities. For purposes hereof, “Excluded Securities” means (I) securities purchased under the Securities Purchase Agreement; (II) securities issued upon conversion of the Preferred Shares or exercise of the Warrants; (III) shares of Common Stock issuable or issued to (x) employees or directors from time to time either directly or upon the exercise of options, in such case granted or to be granted in the discretion of by the Board of Directors, as approved by the independent members of the Board, pursuant to one or more stock option plans or restricted stock plans or stock purchase plans in effect as of the Closing Date or approved by the independent members of the Board of Directors or by the Company’s shareholdersstockholders, or (y) consultants, either directly or pursuant to warrants to purchase Common Stock that are outstanding on the date hereof or issued hereafter, provided such issuances are approved by the independent members of the Board of Directors or by the Company’s shareholdersstockholders; (IV) except as required by subparagraph (c)(ii)(E) above, shares of Common Stock issued in connection with any Convertible Securities or Purchase Rights outstanding on the date hereof; and (V) shares of Common Stock issued to Persons a Person in connection with a joint venture, strategic alliance or other commercial relationship with such Person relating to the operation of the Company’s business and not for the primary purpose of raising equity capital; and (VI) securities issued with respect to which the Holders consents that no such adjustment shall be made as a result of such issuance.

Exceptions to Adjustment of Exercise Price. Notwithstanding the foregoing, no adjustment to the Exercise Price shall be made pursuant to this paragraph (c) upon the issuance of any Excluded Securities. For purposes hereof, “"Excluded Securities” " means (IA) securities purchased under the Securities Purchase Agreement; (IIB) securities issued upon conversion of the Preferred Shares or exercise of the Warrants; (IIIC) shares of Common Stock issuable or issued to (x) employees employees, consultants, officers or directors from time to time either directly or upon the exercise of options, in such case granted or to be granted in the discretion of by the Board of Directors, as approved by the independent members of the BoardDirectors or a committee thereof, pursuant to one or more stock option plans, stock incentive plans or restricted stock plans or stock purchase plans in effect as of the Closing Date or approved by the independent members of the Board of Directors or by including a majority of the Company’s shareholders's independent directors (as such term is defined under Rule 4200(a)(15) of the Nasdaq Market Rules), or (y) consultants, either directly consultants or vendors pursuant to options or warrants to purchase Common Stock that are outstanding on the date hereof or issued hereafter, provided such issuances are approved by the independent members Board of Directors; provided, that in the case of any such options described in this clause (C) that are issued after the date hereof, only options exercisable for a maximum of 10% of the Board number of Directors or by shares outstanding on the Company’s shareholdersClosing Date shall be included as "Excluded Securities" (it being understood that such number does not include any options the issuance of which is not a Dilutive Issuance); (IVD) except as required by paragraph (c)(ii)(E) above, shares of Common Stock issued in connection with any Convertible Securities or Purchase Rights outstanding on the date hereof; and (VE) shares of Common Stock issued to Persons a Person in connection with a joint venture, strategic alliance or other commercial relationship with such Person relating to the operation of the Company’s 's business and not for the primary purpose of raising equity capital; (F) shares of Common Stock issued in connection with the acquisition by the Company of any corporation or other entity or of substantially all of the assets of any corporation or other entity or division or business unit thereof occurring after the Effective Date.

Exceptions to Adjustment of Exercise Price. Notwithstanding the foregoing, no adjustment to the Exercise Price shall be made pursuant to this paragraph (c) upon the issuance of any Excluded Securities. For purposes hereof, “Excluded Securities” means (I) securities purchased under the Securities Purchase Agreement; (II) securities issued upon conversion of the Preferred Shares or exercise of the Warrants; (III) shares of Common Stock issuable or issued to (x) employees or directors from time to time either directly or upon the exercise of options, in such case granted or to be granted in the discretion of by the Board of Directors, as approved by the independent members of the Board, pursuant to one or more stock option plans or restricted stock plans or stock purchase plans in effect as of the Closing Date or approved by the independent members of the Board of Directors or by the Company’s shareholdersstockholders, including Battery Ventures IX, L.P. (“Battery”) and PAR Investment Partners, L.P. (“PAR”), or (y) consultants, either directly or pursuant to warrants to purchase Common Stock that are outstanding on the date hereof or issued hereafter, provided such issuances are approved by the independent members of the Board of Directors Directors, including the Battery representative and the PAR representative, or by the Company’s shareholdersstockholders, including Battery and PAR; (IV) shares of Common Stock issued in connection with any Convertible Securities or Purchase Rights outstanding on the date hereof; and (V) shares of Common Stock issued to Persons a Person in connection with a joint venture, strategic alliance or other commercial relationship with such Person relating to the operation of the Company’s business and not for the primary purpose of raising equity capital; and (VI) securities issued with respect to which the Holders consent that no such adjustment shall be made as a result of such issuance.

Exceptions to Adjustment of Exercise Price. Notwithstanding the foregoing, no adjustment to the Exercise Price shall be made pursuant to this paragraph (c) upon the issuance of any Excluded Securities. For purposes hereof, “"Excluded Securities” " means (I) securities purchased under the Securities Purchase Agreement; (II) securities issued upon conversion of the Preferred Shares or exercise of the Warrants; (III) securities issued upon the exercise of stock options and warrants outstanding as of the date hereof, (IV) shares of Common Stock issuable or issued to (x) employees or directors from time to time either directly or upon the exercise of options, in such case granted or to be granted in the discretion of the Board of Directors, as approved by the independent members of the Board, pursuant to one or more stock option plans or restricted stock plans or stock purchase plans in effect as of the Closing Date or approved by the independent members of the Board of Directors or by the Company’s shareholdersDate, or (y) consultants, either directly or pursuant to warrants to purchase Common Stock that are outstanding on the date hereof or issued hereafter, provided such issuances are approved by the independent members of the Board of Directors or by the Company’s 's shareholders; (IV) shares of Common Stock issued in connection with any Convertible Securities or Purchase Rights outstanding on the date hereof; and (V) shares of Common Stock issued to Persons a Person in connection with a joint venture, strategic alliance or other commercial relationship with such Person relating to the operation of the Company’s 's business and not for the primary purpose of raising equity capital, (VI) up to an additional $3 million of securities that may be directly placed by the Company with its existing shareholders, within 45 days from the date hereof, on the same terms and conditions as the sale of the Securities pursuant to the Purchase Agreement, and (VII) the issuance of up to 100,000 shares to legal counsel for services rendered or to be rendered in connection with the transactions contemplated by this Agreement.

Exceptions to Adjustment of Exercise Price. Notwithstanding the foregoing, no adjustment to the Exercise Price shall be made pursuant to this paragraph (c) upon the issuance of any Excluded Securities. For purposes hereof, “Excluded Securities” means (I) securities purchased under the Securities Purchase Agreement; (II) securities issued upon conversion of the Preferred Shares or exercise of the Warrants; (III) shares of Common Stock issuable or issued to (x) employees or directors from time to time either directly or upon the exercise of options, in such case granted or to be granted in the discretion of by the Board of Directors, as approved by the independent members of the Board, pursuant to one or more stock option plans or restricted stock plans or stock purchase plans in effect as of the Closing Date or approved by the independent members of the Board of Directors or by the Company’s shareholdersstockholders, or (y) consultants, either directly or pursuant to warrants to purchase Common Stock that are outstanding on the date hereof or issued hereafter, provided such issuances are approved by the independent members of the Board of Directors or by the Company’s shareholdersstockholders; (IV) except as required by subparagraph (c)(ii)(E) above, shares of Common Stock issued in connection with any Convertible Securities or Purchase Rights outstanding on the date hereof; and (V) shares of Common Stock issued to Persons a Person in connection with a joint venture, strategic alliance or other commercial relationship with such Person relating to the operation of the Company’s business and not for the primary purpose of raising equity capital; and (VI) securities issued with respect to which the Holders consents that no such adjustment shall be made as a result of such issuance.

Exceptions to Adjustment of Exercise Price. Notwithstanding the foregoing, no adjustment to the Exercise Price shall be made pursuant to this paragraph (cSection 4(c) upon the issuance of any Excluded SecuritiesSecurities and in no event shall the Exercise Price be adjusted pursuant to Section 4(c) to a price less than $1.72 per Warrant Share. For purposes hereof, “Excluded Securities” means (I) securities purchased under sold pursuant to the Securities Stock Purchase AgreementAgreement between the Company and investors dated of even date herewith; (II) securities issued upon conversion of the Preferred Shares or exercise of the Warrantsthis Warrant; (III) shares of Common Stock issuable or issued to (x) employees employees, consultants or directors from time to time either directly or upon the exercise of options, in such case granted or to be granted in the discretion of the Board of Directors, as approved by the independent members of the Board, Directors pursuant to one or more stock option plans or restricted stock plans or stock purchase plans in effect as of the Closing Date or approved by the independent members of the Board of Directors or by the Company’s shareholders, or (y) consultants, either directly or pursuant to warrants to purchase Common Stock that are outstanding on the date hereof or issued hereafter, provided such issuances are approved by the independent members of the Board of Directors or by the Company’s shareholdersIssue Date; (IV) shares of Common Stock issued in connection with any Convertible Securities stock split, stock dividend or Purchase Rights outstanding on recapitalization of the date hereofCompany; and (V) shares of Common Stock securities issued to Persons in connection with a joint venture, strategic alliance bona fide licensing or other commercial relationship with such Person relating to the operation of the Company’s business and strategic transactions not for the primary purpose of raising equity capitalcapital approved by the Board of Directors; and (VI) shares of Common Stock issued in connection with the acquisition by the Company of any corporation or other entity occurring after the Effective Date and as long as a fairness opinion with respect to such acquisition is rendered by an investment bank of national recognition.

Exceptions to Adjustment of Exercise Price. Notwithstanding the foregoing, no adjustment to the Exercise Price shall be made pursuant to this paragraph (c) upon the issuance of any Excluded Securities. For purposes hereof, “"Excluded Securities” " means (I) securities purchased under the Securities Purchase Agreement; (II) securities issued upon conversion of the Preferred Shares or exercise of the Warrants; (III) shares of Common Stock issuable or issued to (x) employees or directors from time to time either directly or upon the exercise of options, in such case granted or to be granted in the discretion of the Board of Directors, as approved by the independent members of the Board, pursuant to one or more stock option plans or restricted stock plans or stock purchase plans in effect as of the Closing Issue Date or subsequently approved by the independent members of the Board of Directors or by the Company’s shareholders's stockholders, or (y) consultantsconsultants or vendors, either directly or pursuant to warrants to purchase Common Stock that are outstanding on the date hereof or issued hereafter, provided such issuances are approved by the independent members of the Board of Directors or by the Company’s shareholders's stockholders; (IV) except as required by subparagraph (c)(ii)(E) above, shares of Common Stock issued in connection with any Convertible Securities or Purchase Rights outstanding on the date hereof; and (V) shares of Common Stock issued to Persons a Person in connection with a joint venture, strategic alliance or other commercial relationship with such Person relating to the operation of the Company’s 's business and not for the primary purpose of raising equity capital; (VI) shares of Common Stock issued in connection with the acquisition by the Company of any corporation or other entity (including, without limitation, the interests in certain limited partnerships of which the Company or a Subsidiary is a general partner); and (VII) securities issued pursuant to a bona fide firm commitment underwritten public offering. For purposes hereof, approval by the independent members of the Board of Directors shall mean the approval of a majority of the independent members of the Board, which majority shall include not fewer than four (4) independent directors (as such term is defined under Rule 4200(a)(15) of the Nasdaq Market Rules).

Exceptions to Adjustment of Exercise Price. Notwithstanding the foregoing, no adjustment to the Exercise Price shall be made pursuant to this paragraph (c) upon the issuance of any Excluded Securities. For purposes hereof, “Excluded Securities” means (I) securities purchased under the Securities Purchase Agreement; (II) securities issued upon conversion of the Preferred Shares or exercise of the Warrants; (III) shares of Common Stock issuable or issued to (x) employees or directors from time to time either directly or upon the exercise of options, in such case granted or to be granted in the discretion of by the Board of Directors, as approved by the independent members of the Board, pursuant to one or more stock option plans or restricted stock plans or stock purchase plans in effect as of the Closing Date or approved by the independent members of the Board of Directors or by the Company’s shareholdersstockholders, including Batter Ventures IX, L.P. (“Battery”), or (y) consultants, either directly or pursuant to warrants to purchase Common Stock that are outstanding on the date hereof or issued hereafter, provided such issuances are approved by the independent members of the Board of Directors Directors, including the Battery representative, or by the Company’s shareholdersstockholders, including Battery; (IV) shares of Common Stock issued in connection with any Convertible Securities or Purchase Rights outstanding on the date hereof; and (V) shares of Common Stock issued to Persons a Person in connection with a joint venture, strategic alliance or other commercial relationship with such Person relating to the operation of the Company’s business and not for the primary purpose of raising equity capital; and (VI) securities issued with respect to which the Holders consent that no such adjustment shall be made as a result of such issuance.

Exceptions to Adjustment of Exercise Price. Notwithstanding the foregoing, no adjustment to the Exercise Price shall be made pursuant to this paragraph (cSection 4(c) upon the issuance of any Excluded SecuritiesSecurities and in no event shall the Exercise Price be adjusted pursuant to Section 4(c) to a price less than $1.20 per Warrant Share. For purposes hereof, “Excluded Securities” means (I) securities purchased under the Securities Purchase Agreement; (II) securities issued upon conversion of the Preferred Shares or exercise of the Warrants; (III) shares of Common Stock issuable or issued to (x) employees employees, consultants or directors from time to time either directly or upon the exercise of options, in such case granted or to be granted in the discretion of the Board of Directors, as approved by the independent members of the Board, Directors pursuant to one or more stock option plans or restricted stock plans or stock purchase plans in effect as of the Closing Date or approved by the independent members of the Board of Directors or by the Company’s shareholders, or (y) consultants, either directly or pursuant to warrants to purchase Common Stock that are outstanding on the date hereof or issued hereafter, provided such issuances are approved by the independent members of the Board of Directors or by the Company’s shareholdersIssue Date; (IV) shares of Common Stock issued in connection with any Convertible Securities stock split, stock dividend or Purchase Rights outstanding on recapitalization of the date hereofCompany; and (V) shares of Common Stock securities issued to Persons in connection with a joint venture, strategic alliance bona fide licensing or other commercial relationship with such Person relating to the operation of the Company’s business and strategic transactions not for the primary purpose of raising equity capitalcapital approved by the Board of Directors; and (VI) shares of Common Stock issued in connection with the acquisition by the Company of any corporation or other entity occurring after the Effective Date and as long as a fairness opinion with respect to such acquisition is rendered by an investment bank of national recognition.

Exceptions to Adjustment of Exercise Price. Notwithstanding the foregoing, no adjustment to the Exercise Price shall be made pursuant to this paragraph (c) upon the issuance of any Excluded Securities. For purposes hereof, “Excluded Securities” means (I) securities purchased under the Securities Purchase Agreement; (II) securities issued upon conversion of the Preferred Shares or exercise of the Warrants; (III) shares of Common Stock issuable or issued to (x) employees or directors from time to time either directly or upon the exercise of options, in such case granted or to be granted in the discretion of the Board of Directors, as approved by the independent members of the Board, pursuant to one or more stock option plans or restricted stock plans or stock purchase plans in effect as of the Closing Execution Date or approved by the independent members of the Board of Directors or by the Company’s shareholders, or (y) consultants, either directly or pursuant to warrants to purchase Common Stock that are outstanding on the date hereof or issued hereafter, provided such issuances are approved by the independent members of the Board of Directors or by the Company’s shareholders; (IV) shares of Common Stock issued in connection with any Convertible Securities or Purchase Rights outstanding on the date hereof; and (V) shares of Common Stock issued to Persons a Person in connection with a joint venture, strategic alliance or other commercial relationship with such Person relating to the operation of the Company’s business and not for the primary purpose of raising equity capital.

Exceptions to Adjustment of Exercise Price. Notwithstanding the foregoing, no adjustment to the Exercise Price shall be made pursuant to this paragraph (c) Section 2.3 upon the issuance of any Excluded Securities. For purposes hereof, “Excluded Securities” means (IA) securities purchased under the Securities Purchase Subscription Agreement; (IIB) securities issued upon conversion of the Preferred Shares or exercise of the WarrantsWarrants or upon the warrants issued third parties as provided for in the Subscription Agreement; (IIIC) shares of Common Stock issuable or issued to (x) employees or directors from time to time either directly or upon the exercise of options, in such case granted or to be granted in the discretion of the Board of Directors, as approved by the independent members of the Board, pursuant to one or more stock option plans or restricted stock plans or stock purchase plans in effect as of the Closing Date or approved by the independent members of the Board of Directors or adopted by the Company’s shareholders, or (y) consultantsto consultants or vendors, either directly or pursuant to warrants or other convertible securities to purchase acquire shares of Common Stock that are outstanding on the date hereof or issued hereafter, provided such issuances are approved by the independent members of the Board of Directors or by the Company’s shareholders; (IVD) shares of Common Stock issued in connection with any Convertible Securities or Purchase Rights Common Stock Equivalents outstanding on the date hereof; and (VE) shares of Common Stock or Common Stock Equivalents issued to Persons third parties in connection with a merger, acquisition, consolidation, joint venture, strategic alliance or other commercial relationship with such Person third party relating to the operation of the Company’s business and not for business, the primary purpose of raising which is not to raise equity capital; and (F) shares of Common Stock or other securities issued in connection with any stock split, stock dividend or recapitalization of the Company.

Exceptions to Adjustment of Exercise Price. Notwithstanding ------------------------------------------ the foregoing, no adjustment to the Exercise Price shall be made pursuant to this paragraph (cSection 6(c) upon the issuance of any Excluded Securities. For purposes hereof, “"Excluded Securities” " means (I) securities purchased under the -------------------- Securities Purchase Agreement; (II) securities issued upon conversion or exercise of the Preferred Shares Stock or exercise of the Warrants; (III) shares of Common Stock issuable or issued to (x) employees employees, consultants or directors from time to time either directly or upon the exercise of options, in such case granted or to be granted in the discretion of the Board of Directors, as approved by the independent members of the Board, Directors pursuant to one or more stock option plans or agreements or restricted stock plans or stock purchase plans agreements in effect as of the Closing Issue Date and up to an additional 500,000 shares of Common Stock issuable or approved by issued to employees or directors from time to time upon the independent members exercise of options, which may be granted in the discretion of the Board of Directors or by the Company’s shareholders, or (y) consultants, either directly or pursuant to warrants to purchase Common Stock that are outstanding on the date hereof one or issued hereafter, provided such issuances are more stock option plans or agreements or restricted stock plans or agreements approved by the independent members directors of the Board of Directors or by after the Company’s shareholdersIssue Date; (IV) shares of Common Stock issued in connection with any Convertible Securities stock split, stock dividend or Purchase Rights outstanding on recapitalization of the date hereofCompany; and (V) shares of Common Stock issued to Persons in connection with a joint venture, strategic alliance the acquisition by the Company of any corporation or other commercial relationship entity occurring after the Effective Date and as long as a fairness opinion with respect to such Person relating to the operation acquisition is rendered by an investment bank of the Company’s business and not for the primary purpose of raising equity capitalnational recognition.