Common use of Adjustment of Conversion Price upon Issuance of Common Stock Clause in Contracts

Adjustment of Conversion Price upon Issuance of Common Stock. Except with respect to Excluded Securities, if and whenever during the term of this Note the Company issues or sells Common Stock, options for common stock, or convertible securities for a consideration per share (the “New Conversion Price”) less than a price equal to the Conversion Price in effect immediately prior to such issue, conversion, or sale or deemed issuance or sale (such Conversion Price then in effect is referred to herein as the “Applicable Price”) (the foregoing a “Dilutive Issuance”), then, immediately after such Dilutive Issuance, the Conversion Price then in effect shall be reduced to an amount equal to the New Conversion Price. For the avoidance of doubt, if the New Conversion Price is greater than the Applicable Price, there shall be no adjustment to the Conversion Price. For the purposes of this Section 3(a), “Excluded Securities” means any shares of Common Stock, options, restricted stock units or convertible securities issued or issuable (i) in connection with any approved stock plan and (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. 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 Excluded Securities. Provided, however, any and all rights of Holder under this Section 3(a) shall immediately expire if and when the Company if and when the Company’s common stock becomes listed or quoted on a “national securities exchange” within the meaning of Section 6 of the Securities Exchange Act of 1934, as amended.

Adjustment of Conversion Price upon Issuance of Common Stock. Except If the Issuer issues or sells, or in accordance with respect this Section 7(a) is deemed to have issued or sold, or the Issuer publicly announces the issuance or sale of, any shares of Common Stock (including the issuance or sale of shares of Common Stock owned or held by or for the account of the Issuer, but excluding shares of Common Stock issued or sold, or in accordance with this Section 7(a) deemed to have been issued or sold, by the Issuer (x) in connection with any Excluded Securities, if (y) for which the Holder received a Distribution in at least an equivalent amount pursuant to Section 6(a) and whenever during (z) adjusting the term of this Note the Company issues or sells Common StockConversion Price pursuant to Section 7(b)), options for common stock, or convertible securities for a consideration per share (the “New Conversion Issuance Price”) less than a price (the “Applicable Price”) equal to the Conversion Price in effect immediately prior to such issue, conversion, issue or sale or deemed issuance or sale (such Conversion Price then in effect is referred to herein as the “Applicable Price”) (the foregoing a “Dilutive Issuance”), then, then immediately after such Dilutive Issuance, Issuance the Conversion Price then in effect shall be reduced to an amount equal to a price determined by multiplying the New Conversion PriceApplicable Price by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately prior to such issue plus the number of shares of Common Stock which the aggregate consideration received by the Issuer for the total number of additional shares of Common Stock so issued would purchase at the Applicable Price in effect immediately prior to such issuance, and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such issue plus the number of such additional shares of Common Stock so issued. For the avoidance purpose of doubtthe above calculation, if the New Conversion Price is greater than the Applicable Price, there number of shares of Common Stock outstanding immediately prior to such issue shall be no adjustment calculated on a fully diluted basis, as if all securities convertible or exchangeable for shares of Common Stock had been fully converted into shares of Common Stock immediately prior to such issuance and any outstanding warrants, options or other rights for the Conversion Price. For purchase of shares of Common Stock had been fully exercised immediately prior to such issuance (and the purposes of this Section 3(a), “Excluded Securities” means any resulting securities fully converted into shares of Common Stock, options, restricted stock units or convertible securities issued or issuable (iif so convertible) in connection with any approved stock plan and (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, as of such date. For purposes of determining the purpose of which is not to raise additional capital. 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 Excluded Securities. Provided, however, any and all rights of Holder adjusted Conversion Price under this Section 3(a) 7(a), the following shall immediately expire if and when the Company if and when the Company’s common stock becomes listed or quoted on a “national securities exchange” within the meaning of Section 6 of the Securities Exchange Act of 1934, as amended.be applicable:

Adjustment of Conversion Price upon Issuance of Common Stock. Except with respect Subject to Excluded Securitiesthe immediately following sentence which relates to issuances occurring within the first nine months following the Initial Issuance Date, if and whenever during after the term of this Note Initial Issuance Date, the Company issues or sells Common Stock, options for common stocksells, or convertible securities in accordance with this Section 2(f)(i) is deemed to have issued or sold, any shares of Common Stock (including the issuance or sale of shares of Common Stock owned or held by or for the account of the Company, but excluding shares of Common Stock deemed to have been issued or sold by the Company in connection with any Excluded Security) for a consideration per share (the “New Conversion Price”) less than a price ("Applicable Price") equal to the Conversion Price in effect immediately prior to such issue, conversion, issue or sale or deemed issuance or sale (such Conversion Price then in effect is referred to herein as the “Applicable Price”) (the foregoing a “"Dilutive Issuance”"), then, then immediately after such Dilutive Issuance, the Conversion Price then in effect shall be reduced to an amount equal to the New Conversion Adjusted Price. For After the avoidance Initial Issuance Date and prior to the nine (9) month anniversary of doubtthe Initial Issuance Date, if the New Conversion Price is greater than the "Applicable Price, there shall be no adjustment " with respect to any issuance or sale by the Conversion Price. For Company of Common Stock (including the purposes issuance or sale of this Section 3(a), “Excluded Securities” means any shares of Common StockStock owned or held by or for the account of the Company, options, restricted stock units or convertible securities but excluding shares of Common Stock deemed to have been issued or issuable (i) sold by the Company in connection with any approved stock plan and Excluded Security) shall be the Market Price; provided that, without the prior written consent of the Required Holders, during such nine (ii9) 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 basismonth period, the purpose of which is Company shall not to raise additional capital. Notwithstanding the foregoing, any issue Common Stock (excluding shares of Common Stock deemed to have been issued or issuable to raise capital for sold by the Company or its subsidiaries, directly or indirectly, in connection with any transaction contemplated by clause Excluded Security) for which it receives proceeds (iinet of offering expenses, discounts and fees) above, including, without limitation, securities issued in one or of more related transactions or that result in similar economic consequences, shall not be deemed to be Excluded Securitiesthan Fifty Million Dollars ($50,000,000) at a gross per share price below the Market Price. Provided, however, any and all rights For purposes of Holder determining the adjusted Conversion Price under this Section 3(a) 2(f)(i), the following shall immediately expire if and when the Company if and when the Company’s common stock becomes listed or quoted on a “national securities exchange” within the meaning of Section 6 of the Securities Exchange Act of 1934, as amended.be applicable:

Adjustment of Conversion Price upon Issuance of Common Stock. Except with respect to Excluded Securities, if If and whenever during on or after the term Subscription Date and prior to the nine (9) month anniversary of this Note the Initial Issuance Date, the Company issues or sells Common Stock, options for common stocksells, or convertible securities in accordance with this Section 2(f)(i) is deemed to have issued or sold, any shares of Common Stock (including the issuance or sale of shares of Common Stock owned or held by or for the account of the Company, but excluding shares of Common Stock deemed to have been issued or sold by the Company in connection with any Excluded Security) for a consideration per share (the “New Conversion Issuance Price”) less than a price (the “Applicable Price”) equal to the Conversion Price in effect immediately prior to such issue, conversion, issue or sale or deemed issuance or sale (such Conversion Price then in effect is referred to herein as the “Applicable Price”) (the foregoing a “Dilutive Issuance”), then, then immediately after such Dilutive Issuance, the Conversion Price then in effect shall be reduced to an amount equal to the New Conversion Price. For quotient of (A) the avoidance sum of doubt, if (1) the Adjusted Price and (2) the New Conversion Issuance Price is greater than divided by (B) two (2). If and whenever after the Applicable Pricenine (9) month anniversary of the Initial Issuance Date, there shall be no adjustment to the Conversion Price. For the purposes of Company issues or sells, or in accordance with this Section 3(a)2(f)(i) is deemed to have issued or sold, “Excluded Securities” means any shares of Common StockStock (including the issuance or sale of shares of Common Stock owned or held by or for the account of the Company, options, restricted stock units or convertible securities but excluding shares of Common Stock deemed to have been issued or issuable (i) sold by the Company in connection with any approved stock plan and (iiExcluded Security) in connection with mergersa Dilutive Issuance, 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 basisthen immediately after such Dilutive Issuance, the purpose Conversion Price then in effect shall be reduced to an amount equal to the Adjusted Price. For purposes of which is not to raise additional capital. Notwithstanding determining 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 Excluded Securities. Provided, however, any and all rights of Holder adjusted Conversion Price under this Section 3(a) 2(f)(i), the following shall immediately expire if and when the Company if and when the Company’s common stock becomes listed or quoted on a “national securities exchange” within the meaning of Section 6 of the Securities Exchange Act of 1934, as amended.be applicable:

Adjustment of Conversion Price upon Issuance of Common Stock. Except with respect Subject to Excluded Securitiesthe immediately following sentence which relates to issuances occurring within the first nine months following the Initial Issuance Date, if and whenever during after the term of this Note Initial Issuance Date, the Company issues or sells Common Stock, options for common stocksells, or convertible securities in accordance with this Section 2(f)(i) is deemed to have issued or sold, any shares of Common Stock (including the issuance or sale of shares of Common Stock owned or held by or for the account of the Company, but excluding shares of Common Stock deemed to have been issued or sold by the Company in connection with any Excluded Security) for a consideration per share (the “New Conversion Price”) less than a price (“Applicable Price”) equal to the Conversion Price in effect immediately prior to such issue, conversion, issue or sale or deemed issuance or sale (such Conversion Price then in effect is referred to herein as the “Applicable Price”) (the foregoing a “Dilutive Issuance”), then, then immediately after such Dilutive Issuance, the Conversion Price then in effect shall be reduced to an amount equal to the New Conversion Adjusted Price. For After the avoidance Initial Issuance Date and prior to the nine (9) month anniversary of doubtthe Initial Issuance Date, if the New Conversion Price is greater than the “Applicable Price, there shall be no adjustment ” with respect to any issuance or sale by the Conversion Price. For Company of Common Stock (including the purposes issuance or sale of this Section 3(a), “Excluded Securities” means any shares of Common StockStock owned or held by or for the account of the Company, options, restricted stock units or convertible securities but excluding shares of Common Stock deemed to have been issued or issuable (i) sold by the Company in connection with any approved stock plan and Excluded Security) shall be the Market Price; provided that, without the prior written consent of the Required Holders, during such nine (ii9) 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 basismonth period, the purpose of which is Company shall not to raise additional capital. Notwithstanding the foregoing, any issue Common Stock issued or issuable to raise capital for which it receives proceeds (net of offering expenses, discounts and fees) of more than Thirty Million Dollars ($30,000,000) at a gross per share price below 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 Excluded SecuritiesMarket Price. Provided, however, any and all rights For purposes of Holder determining the adjusted Conversion Price under this Section 3(a) 2(f)(i), the following shall immediately expire if and when the Company if and when the Company’s common stock becomes listed or quoted on a “national securities exchange” within the meaning of Section 6 of the Securities Exchange Act of 1934, as amended.be applicable:

Adjustment of Conversion Price upon Issuance of Common Stock. Except with respect to Excluded Securitiesas provided in Paragraph 6(d)(5) , if and whenever during the term Corporation shall issue or sell any shares of this Note the Company issues or sells its Common Stock, options for common stock, or convertible securities Stock for a consideration per share (the “New Conversion Price”) less than the Conversion Price then in effect on the date of such issue or sale, then, forthwith upon such issue or sale, the Conversion Price shall be reduced to the price (calculated to the nearest cent -- a price equal half cent or more being considered a full cent) determined by multiplying the Conversion Price in effect immediately prior to the time of such issue or sale by a fraction, the numerator of which shall be the sum of (i) the number of shares of Common Stock outstanding immediately prior to such issue or sale multiplied by the Conversion Price in effect immediately prior to such issue, conversion, issue or sale plus (ii) the consideration received by the Corporation upon such issue or deemed issuance or sale sale, and the denominator of which shall be the product of (such Conversion Price then in effect is referred to herein as iii) the “Applicable Price”) (the foregoing a “Dilutive Issuance”), then, total number of shares of Common Stock outstanding immediately after such Dilutive Issuanceissue or sale, multiplied by (iv) the Conversion Price then in effect shall be reduced immediately prior to an amount equal to the New Conversion Price. For the avoidance of doubt, if the New Conversion Price is greater than the Applicable Price, there shall be no adjustment to the Conversion Pricesuch issue or sale. For the purposes of this Section 3(a)the foregoing calculation, “Excluded Securities” means any all shares of Common StockStock of the Corporation issuable upon conversion of all then outstanding convertible securities (including those certain 8% Debentures issued pursuant to that certain Debenture and Note Purchase Agreement dated June 29, 1999 (the "Debenture and Note Purchase Agreement")) and upon exercise of all then outstanding options, restricted stock units warrants or other rights to acquire Common Stock (including those certain Warrants issued pursuant to the Debenture and Note Purchase Agreement) shall be deemed outstanding but only to the extent and only if the Market Value of the Common Stock of the Corporation on such date is in excess of the conversion price of such convertible securities issued then in effect or issuable the exercise price of such options, warrants or other rights then in effect, respectively. (i) in connection with any approved stock plan and (ii) in connection with mergers, acquisitions, strategic licensing arrangements, strategic business partnerships In case of the issuance or joint ventures, in each case with non-affiliated third parties and otherwise on an arm’s-length basissale of shares of Common Stock for a consideration part or all of which shall be cash, the purpose amount of which is not to raise additional capital. 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, cash consideration therefor shall not be deemed to be Excluded Securities. Providedthe amount of cash received by the Corporation for such shares (or, howeverif shares of Common Stock are offered by the Corporation for subscription, the subscription price, or, if shares of Common Stock shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) without deducting therefrom any and all rights of Holder under this Section 3(acompensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services or any expenses incurred in connection therewith. (ii) shall immediately expire if and when the Company if and when the Company’s common stock becomes listed or quoted on a “national securities exchange” within the meaning of Section 6 In case of the Securities Exchange Act issuance or sale (otherwise than as a dividend or other distribution on or subdivision of 1934any stock of the Corporation or on conversion or exchange of other securities of the Corporation) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration, as amendeddetermined in good faith by the Board of Directors of the Corporation, at or about, but as of, the date of the adoption of the resolution authorizing such issuance for a consideration other than cash of such Common Stock immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such Common Stock. (iii) Shares of Common Stock issuable by way of dividend or other distribution on or subdivision of any stock of the Corporation shall be deemed to have been issued immediately after the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution or subdivision.

Adjustment of Conversion Price upon Issuance of Common Stock. Except with respect to Excluded Securities, if 5.2.1. If and whenever during after the term of this Note date hereof the Company issues shall issue or sells sell any Common Stock, options Stock for common stock, no consideration or convertible securities for a consideration per share (less than the “New Conversion Price”, the Conversion Price shall be reduced (but not increased, except as otherwise specifically provided herein), to the price (calculated to the nearest one-tenth of a cent) determined by dividing (x) an amount equal to the sum of (1) the aggregate number of shares of Common Stock outstanding immediately prior to such issue or sale multiplied by the then existing Conversion Price plus (2) the consideration received by the Company upon such issue or sale by (y) the aggregate number of shares of Common Stock outstanding immediately after such issue or sale. 5.2.2. No adjustment shall be made in the Conversion Price in the event that the Company issues, in one or more transactions, (i) Common Stock upon exercise of any options issued to officers, directors or employees of the Company pursuant to a stock option plan or an employment, severance or consulting agreement as now or hereafter in effect, the 1996 Nonemployee Directors' Stock Option Plan, or the Management Incentive Stock Plan, in each case approved by the Board of Directors, provided that the aggregate number of shares of Common Stock which may be issuable, including options issued prior to the date hereof, under all such employee plans and agreements shall at no time exceed the number of such shares of Common Stock that are issuable under currently effective employee plans and agreements, the 1996 Nonemployee Directors' Stock Option Plan, or the Management Incentive Stock Plan; (ii) Common Stock upon conversion of this Note or exercise of the Warrants; (iii) Common Stock upon exercise of any stock purchase warrant or option (other than the options referred to in clause (i) above) or other convertible security outstanding on the date hereof; or (iv) Common Stock issued as consideration in acquisitions. In addition, for purposes of calculating any adjustment of the Conversion Price, all of the shares of Common Stock issuable pursuant to any of the foregoing shall be assumed to be outstanding prior to the event causing such adjustment to be made. 5.2.3. In case at any time after the date hereof the Company shall in any manner grant (whether directly or by assumption in a merger or otherwise) any rights to subscribe for or to purchase Common Stock or any options, except for options issued to officers, directors or employees of the Company pursuant to a stock option plan in effect as of the date hereof, the 1996 Nonemployee Directors' Stock Option Plan, or the Management Incentive Stock Plan, for the purchase of Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such convertible or exchangeable stock or securities being herein called "Convertible Securities"), whether or not such rights or options or the right to convert or exchange any such Convertible Securities are immediately exercisable, and the price per share for which shares of Common Stock are issuable upon the exercise of such rights or options or upon conversion or exchange of such Convertible Securities (determined by dividing (i) the total amount, if any, received or receivable by the Company as consideration for the granting of such rights or options, plus the minimum aggregate amount of additional consideration, if any, payable to the Company upon the exercise of such rights or options, or plus, in the case of such rights or options that relate to Convertible Securities, the minimum aggregate amount of additional consideration, if any, payable upon the issue or sale of such Convertible Securities and upon the conversion or exchange thereof, by (ii) the total maximum number of shares of Common Stock issuable upon the exercise of such rights or options or upon the conversion or exchange of all such Convertible Securities issuable upon the exercise of such rights or options) shall be less than a price equal to the Conversion Price in effect immediately prior as of the date of granting such rights or options, then the total maximum number of shares of Common Stock issuable upon the exercise of such rights or options or upon conversion or exchange of all such Convertible Securities issuable upon the exercise of such rights or options shall be deemed to be outstanding as of the date of the granting of such issuerights or options and to have been issued for such price per share, conversionwith the effect on the Conversion Price specified herein. Except as provided herein, no further adjustment of the Conversion Price shall be made upon the actual issuance of such Common Stock or of such Convertible Securities upon exercise of such rights or options or upon the actual issuance of such Common Stock upon conversion or exchange of such Convertible Securities. 5.2.4. If: (i) the purchase price provided for in any right or option, (ii) the additional consideration, if any, payable upon the conversion or exchange of any Convertible Securities, or sale (iii) the rate at which any Convertible Securities are convertible into or deemed issuance or sale exchangeable for Common Stock shall be decreased (such Conversion Price then in effect is referred other than by reason of provisions designed to herein as the “Applicable Price”) (the foregoing a “Dilutive Issuance”protect against dilution), then, immediately after such Dilutive Issuance, the Conversion Price then in effect shall be reduced to an amount equal to the New Conversion Price. For the avoidance of doubt, if the New Conversion Price is greater than the Applicable Price, there shall be no adjustment decreased to the Conversion PricePrice that would have been in effect had such rights, options or Convertible Securities provided for such changed purchase price, additional consideration or conversion rate at the time initially issued. 5.2.5. For In case at any time Common Stock or Convertible Securities or any rights or options to purchase Common Stock or Convertible Securities shall be issued or sold for cash, the purposes total amount of this Section 3(a)cash consideration shall be deemed to be the amount received by the Company. If at any time any Common Stock, “Excluded Convertible Securities or any rights or options to purchase any such Common Stock or Convertible Securities shall be issued or sold for consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the fair value of such consideration, as determined reasonably and in good faith by the Board of Directors of the Company. If at any time any Common Stock, Convertible Securities or any rights or options to purchase any Common Stock or Convertible Securities shall be issued in connection with any merger or consolidation in which the Company is the surviving corporation, the amount of consideration received therefor shall be deemed to be the fair value, as determined reasonably and in good faith by the Board of Directors of the Company, of such portion of the assets and business of the nonsurviving corporation as such Board of Directors may determine to be attributable to such Common Stock, Convertible Securities” means , rights or options as the case may be. In case at any time any rights or options to purchase any shares of Common StockStock or Convertible Securities shall be issued in connection with the issuance and sale of other securities of the Company, optionstogether consisting of one integral transaction in which no consideration is allocated to such rights or options by the parties, restricted stock units such rights or convertible securities options shall be deemed to have been issued or issuable without consideration. 5.2.6. In the case the Company shall take a record of the holders of its Common Stock for the purpose of entitling them (i) to receive a dividend or other distribution payable in connection with any approved stock plan and Common Stock or Convertible Securities, or (ii) in connection with mergers, acquisitions, strategic licensing arrangements, strategic business partnerships to subscribe for 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. Notwithstanding the foregoing, any purchase Common Stock issued or issuable to raise capital for the Company or its subsidiariesConvertible Securities, 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, then such record date shall not be deemed to be Excluded Securitiesthe date of the issuance or sale of the Common Stock or Convertible Securities deemed to have been issued or sold as a result of the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be. 5.2.7. Provided, however, The number of shares of Common Stock outstanding at any and all rights of Holder under this Section 3(a) given time shall immediately expire if and when not include shares owned directly by the Company if in treasury, and when the Company’s common stock becomes listed disposition of any such shares shall be considered an issuance or quoted on a “national securities exchange” within the meaning sale of Section 6 of the Securities Exchange Act of 1934, as amendedCommon Stock.

Adjustment of Conversion Price upon Issuance of Common Stock. Except with respect to Excluded Securities, if If and whenever during the term period starting on the Issuance Date and ending on and including the third anniversary of this Note the Issuance Date, the Company issues or sells sells, or in accordance with this Section 7(a) is deemed to have issued or sold, any shares of Common Stock (including, without limitation, the issuance or sale of shares of Common Stock owned or held by or for the account of the Company and the issuance of any shares of Common Stock, options Options or Convertible Securities in exchange for common stockany security such as a non-convertible note, but excluding shares of Common Stock deemed to have been issued or convertible securities sold by the Company in connection with any Excluded Security) for a consideration per share (the “New Conversion Issuance Price”) less than a price (the “Applicable Price”) equal to the Conversion Price in effect immediately prior to such issue, conversion, issue or sale or deemed issuance or sale (such Conversion Price then in effect is referred to herein as the “Applicable Price”) (the foregoing a “Dilutive Issuance”), thenthen immediately after such Dilutive Issuance, the Conversion Price then in effect shall be reduced to the New Issuance Price. If and whenever after the third anniversary of the Issuance Date, the Company engages in a Dilutive Issuance, then immediately after such Dilutive Issuance, the Conversion Price then in effect shall be reduced to an amount equal to the New Conversion Price. For product of (A) the avoidance of doubt, if the New Conversion Price is greater than in effect immediately prior to such Dilutive Issuance and (B) the Applicable Price, there shall be no adjustment to quotient determined by dividing (1) the sum of (I) the product derived by multiplying the Conversion Price. For Price in effect immediately prior to such Dilutive Issuance and the purposes number of this Section 3(a), “Excluded Securities” means any shares of Common StockStock Deemed Outstanding immediately prior to such Dilutive Issuance plus (II) the consideration, optionsif any, restricted stock units or convertible securities issued or issuable received by the Company upon such Dilutive Issuance, by (i2) the product derived by multiplying (I) the Conversion Price in connection with any approved stock plan and effect immediately prior to such Dilutive Issuance by (iiII) 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 number of which is not to raise additional capital. Notwithstanding the foregoing, any shares of Common Stock issued or issuable to raise capital for Deemed Outstanding immediately after such Dilutive Issuance, provided that in no event shall 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 Conversion Price be deemed to be Excluded Securitiesreduced below the par value of the Common Stock. Provided, however, any and all rights For purposes of Holder determining the adjusted Conversion Price under this Section 3(a) 7(a), the following shall immediately expire if and when the Company if and when the Company’s common stock becomes listed or quoted on a “national securities exchange” within the meaning of Section 6 of the Securities Exchange Act of 1934, as amended.be applicable:

Adjustment of Conversion Price upon Issuance of Common Stock. Except with respect to Excluded Securities, if If and whenever during on or after the term of this Note Subscription Date, the Company issues or sells Common Stock, options for common stocksells, or convertible securities in accordance with this Section 7(a) is deemed to have issued or sold, any shares of Common Stock (excluding Excluded Securities and shares of Common Stock deemed to have been issued or sold by the Company in connection with any Excluded Securities) for a consideration per share (the “New Conversion Issuance Price”) less than a price (the “Applicable Price”) equal to the Conversion Price in effect immediately prior to such issue, conversion, issue or sale or deemed issuance or sale (such Conversion Price then in effect is referred to herein as the “Applicable Price”) (the foregoing a “Dilutive Issuance”), then, then immediately after such Dilutive Issuance, Issuance the Conversion Price then in effect shall be reduced concurrently with such Dilutive Issuance to an amount equal (A) in the event that the Dilutive Issuance is completed at a time during which at least one-third of the Original Principal Amount of the Notes remains outstanding (the “Ratchet Period”), to the New Issuance Price, and (B) in the event that the Dilutive Issuance is completed at a time that less than one-third of the Original Principal Amount of the Notes remain outstanding, an amount determined by multiplying the Conversion PricePrice then in effect by a fraction, (x) the numerator of which shall be the sum of (1) the number of shares of Common Stock Deemed Outstanding immediately prior to such Dilutive Issuance plus (2) the number of shares of Common Stock which the aggregate consideration received by the Company for such additional shares in the Dilutive Issuance would purchase at the Conversion Price then in effect; and (y) the denominator of which shall be the number of shares of Common Stock Deemed Outstanding immediately after such Dilutive Issuance but before giving effect to anti-dilution rights contained in other securities of the Company that would be triggered by the same Dilutive Issuance. For the avoidance of doubt, if the New Conversion Price is greater than the Applicable Price, there shall be no adjustment to the Conversion Price. For the purposes of this Section 3(a)paragraph, “Excluded SecuritiesCommon Stock Deemed Outstanding” means shall mean at any given time, the number of shares of Common StockStock outstanding at such time, optionsplus the number of shares of Common Stock deemed to be outstanding pursuant to Sections 7(a)(i) and 7(a)(ii) hereof regardless of whether the Options or Convertible Securities are actually exercisable at such time, restricted stock units or convertible securities issued or issuable (i) in connection with any approved stock plan and (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. Notwithstanding the foregoing, but excluding any Common Stock issued owned or issuable to raise capital held by or for the account of the Company or its subsidiariesissuable upon conversion or exercise, directly or indirectlyas applicable, 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 Excluded Securitiesof the Notes and the Warrants. Provided, however, any and all rights For purposes of Holder determining the adjusted Conversion Price under this Section 3(a) 7(a), the following shall immediately expire if and when the Company if and when the Company’s common stock becomes listed or quoted on a “national securities exchange” within the meaning of Section 6 of the Securities Exchange Act of 1934, as amended.be applicable:

Adjustment of Conversion Price upon Issuance of Common Stock. Except with respect to Excluded Securitiesas provided in Paragraph 6(d)(5) , if and whenever during the term Corporation shall issue or sell any shares of this Note the Company issues or sells its Common Stock, options for common stock, or convertible securities Stock for a consideration per share (the “New Conversion Price”) less than the Conversion Price then in effect on the date of such issue or sale, then, forthwith upon such issue or sale, the Conversion Price shall be reduced to the price (calculated to the nearest cent -- a price equal half cent or more being considered a full cent) determined by multiplying the Conversion Price in effect immediately prior to the time of such issue or sale by a fraction, the numerator of which shall be the sum of (i) the number of shares of Common Stock outstanding immediately prior to such issue or sale multiplied by the Conversion Price in effect immediately prior to such issue, conversion, issue or sale plus (ii) the consideration received by the Corporation upon such issue or deemed issuance or sale sale, and the denominator of which shall be the product of (such Conversion Price then in effect is referred to herein as iii) the “Applicable Price”) (the foregoing a “Dilutive Issuance”), then, total number of shares of Common Stock outstanding immediately after such Dilutive Issuanceissue or sale, multiplied by (iv) the Conversion Price then in effect shall be reduced immediately prior to an amount equal to the New Conversion Price. For the avoidance of doubt, if the New Conversion Price is greater than the Applicable Price, there shall be no adjustment to the Conversion Pricesuch issue or sale. For the purposes of this Section 3(a)the foregoing calculation, “Excluded Securities” means any all shares of Common StockStock of the Corporation issuable upon conversion of all then outstanding convertible securities (including those certain 8% Debentures issued pursuant to that certain Debenture and Note Purchase Agreement dated June __, 1999 (the "Debenture and Note Purchase Agreement")) and upon exercise of all then outstanding options, restricted stock units warrants or other rights to acquire Common Stock (including those certain Warrants issued pursuant to the Debenture and Note Purchase Agreement) shall be deemed outstanding but only to the extent and only if the Market Value of the Common Stock of the Corporation on such date is in excess of the conversion price of such convertible securities issued then in effect or issuable the exercise price of such options, warrants or other rights then in effect, respectively. (i) in connection with any approved stock plan and (ii) in connection with mergers, acquisitions, strategic licensing arrangements, strategic business partnerships In case of the issuance or joint ventures, in each case with non-affiliated third parties and otherwise on an arm’s-length basissale of shares of Common Stock for a consideration part or all of which shall be cash, the purpose amount of which is not to raise additional capital. 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, cash consideration therefor shall not be deemed to be Excluded Securities. Providedthe amount of cash received by the Corporation for such shares (or, howeverif shares of Common Stock are offered by the Corporation for subscription, the subscription price, or, if shares of Common Stock shall be sold to underwriters or dealers for public offering without a subscription offering, the initial public offering price) without deducting therefrom any and all rights of Holder under this Section 3(acompensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services or any expenses incurred in connection therewith. (ii) shall immediately expire if and when the Company if and when the Company’s common stock becomes listed or quoted on a “national securities exchange” within the meaning of Section 6 In case of the Securities Exchange Act issuance or sale (otherwise than as a dividend or other distribution on or subdivision of 1934any stock of the Corporation or on conversion or exchange of other securities of the Corporation) of shares of Common Stock for a consideration part or all of which shall be other than cash, the amount of the consideration therefor other than cash shall be deemed to be the value of such consideration, as amendeddetermined in good faith by the Board of Directors of the Corporation, at or about, but as of, the date of the adoption of the resolution authorizing such issuance for a consideration other than cash of such Common Stock immediately prior to the close of business on the date fixed for the determination of security holders entitled to receive such Common Stock. (iii) Shares of Common Stock issuable by way of dividend or other distribution on or subdivision of any stock of the Corporation shall be deemed to have been issued immediately after the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution or subdivision.

Adjustment of Conversion Price upon Issuance of Common Stock. Except with respect to Excluded Securities, if If and whenever during on or after the term of this Note Effective Date, the Company issues or sells Common Stock, options for common stocksells, or convertible securities in accordance with this Section 3(e)(i) is deemed to have issued or sold, any shares of Common Stock (including the issuance or sale of shares of Common Stock owned or held by or for the account of the Company, but excluding Excluded Securities) for a consideration per share (the “New Conversion Issuance Price”) less than a price (the “Applicable Price”) equal to the Conversion Closing Sale Price in effect immediately prior to such issue, conversion, issuance (other than such issuances or sale or deemed issuance or sale (sales pursuant to an underwritten public offering for which the Applicable Price is less than such Conversion Closing Sale Price then in effect is referred to herein as the “Applicable Price”solely on account of customary selling concessions and discounts) (the foregoing a “Dilutive Issuance”), then, then immediately after such Dilutive Issuance, the Conversion Price then in effect shall be reduced to an amount equal to the New product of (x) the Conversion Price in effect immediately prior to such Dilutive Issuance and (y) the quotient of (1) the sum of (I) the product of the Conversion Price in effect immediately prior to such Dilutive Issuance and the number of shares of Common Stock Deemed Outstanding immediately prior to such Dilutive Issuance and (II) the consideration, if any, received by the Company from such Dilutive Issuance, divided by (2) the sum of (I) the product of (x) the Conversion Price in effect immediately prior to such Dilutive Issuance multiplied by (y) the number of shares of Common Stock Deemed Outstanding immediately prior to such Dilutive Issuance plus (II) the product of (x) the number of shares of Common Stock sold in such Dilutive Issuance or deemed to be outstanding pursuant to Sections 3(e)(i)(A) and 3(e)(i)(B) with respect to such Dilutive Issuance, as applicable, and (y) the Applicable Price. For purposes of determining the avoidance of doubt, if the New adjusted Conversion Price is greater than the Applicable Price, there shall be no adjustment to the Conversion Price. For the purposes of this Section 3(a), “Excluded Securities” means any shares of Common Stock, options, restricted stock units or convertible securities issued or issuable (i) in connection with any approved stock plan and (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. 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 Excluded Securities. Provided, however, any and all rights of Holder under this Section 3(a) 3(e)(i), the following shall immediately expire if and when the Company if and when the Company’s common stock becomes listed or quoted on a “national securities exchange” within the meaning of Section 6 of the Securities Exchange Act of 1934, as amended.be applicable:

Adjustment of Conversion Price upon Issuance of Common Stock. Except with respect to Excluded SecuritiesIf the Company, if and whenever during the term of at any time while this Note the Company is outstanding, issues or sells any Common StockShares or Convertible Securities, options for common stockincluding any issuances in connection with a Concurrent Issuance (as defined in the SEPA, even if such issuance was made prior to the issuance of this Note) (other than shares issued or convertible securities sold by the Company in connection with any Excluded Securities), for a consideration per share (the “New Conversion Issuance Price”) less than a price equal to the Conversion Fixed Price in effect immediately prior to such issue, conversion, or sale or deemed issuance issue or sale (such Conversion Price then in effect is referred to herein as price the “Applicable Price”) (the foregoing foregoing, a “Dilutive Issuance”), then, then immediately after such Dilutive Issuance, Issuance the Conversion Fixed Price then in effect shall be reduced to an amount equal to the New Conversion Issuance Price. For the avoidance of doubtpurposes hereof, if the New Conversion Price Company in any manner issues or sells any Convertible Securities (other than shares issued or sold by the Company in connection with any Excluded Securities) and the lowest price per share for which one Common Share is greater issuable upon such conversion or exchange or exercise thereof is less than the Applicable Price, there then such Common Share shall be no deemed to be outstanding and to have been issued and sold by the Company at the time of the issuance or sale of such Convertible Securities for such price per share. No further adjustment of the Conversion Price shall be made upon the actual issuance of such Common Share upon conversion or exchange or exercise of such Convertible Securities. If any Concurrent Issuances contain conversion price adjustments that are more favorable to the Conversion provisions of this Note, including the determination of the Variable Price. For , or if the price per share for which one Common Share is issuable upon conversion or exchange or exercise of any Concurrent Issuance is subsequently reduced to a price that is less than the Applicable Price, then such change shall be considered a Dilutive Issuance for the purposes of this Section 3(a3(f), “Excluded Securities” means any shares of Common Stockand the Holder, options, restricted stock units or convertible securities issued or issuable (i) in connection with any approved stock plan and (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. Notwithstanding the foregoing, any Common Stock issued or issuable to raise capital for the Company or at 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 consequencesoption, shall not be deemed entitled to the same adjustment to the Fixed Price or shall be Excluded Securities. Provided, however, any and all rights of Holder under this Section 3(a) shall immediately expire if and when entitled to an adjustment to the Company if and when the Company’s common stock becomes listed or quoted on a “national securities exchange” within the meaning of Section 6 of the Securities Exchange Act of 1934, as amendedVariable Price to match such Dilutive Issuance.

Adjustment of Conversion Price upon Issuance of Common Stock. Except with respect to Excluded Securities, if (a) If and whenever during on or after the term Subscription Date through the eighteen (18) month anniversary of this Note the Issuance Date, the Company issues or sells Common Stock, options for common stocksells, or convertible securities in accordance with this Section 13.09(a) is deemed to have issued or sold, any shares of Common Stock (including the issuance or sale of shares of Common Stock owned or held by or for the account of the Company, but excluding shares of Common Stock deemed to have been issued or sold by the Company in connection with any Excluded Security) for a consideration per share (the “"New Conversion Securities Issuance Price”") less than a price (the "Applicable Price") equal to the Conversion Price in effect immediately prior to such issue, conversion, issue or sale or deemed issuance or sale (such Conversion Price then in effect is referred to herein as the “Applicable Price”) (the foregoing a “"Dilutive Issuance”"), then, then immediately after such Dilutive Issuance, the Conversion Price then in effect shall be reduced to an amount equal to the New Conversion Securities Issuance Price. For If and whenever after the avoidance eighteen (18) month anniversary of doubtthe Issuance Date, if the New Conversion Price is greater than the Applicable PriceCompany issues or sells, there shall be no adjustment to the Conversion Price. For the purposes of or in accordance with this Section 3(a)13.09(a) is deemed to have issued or sold, “Excluded Securities” means any shares of Common StockStock (including the issuance or sale of shares of Common Stock owned or held by or for the account of the Company, options, restricted stock units or convertible securities but excluding shares of Common Stock deemed to have been issued or issuable (i) sold by the Company in connection with any approved stock plan Excluded Security) in a Dilutive Issuance, then immediately after such Dilutive Issuance, the Conversion Price then in effect shall be reduced to an amount equal the product of (A) the Conversion Price in effect immediately prior to such Dilutive Issuance and (iiB) the quotient determined by dividing (1) the sum of (I) the product derived by multiplying the Conversion Price in connection with mergers, acquisitions, strategic licensing arrangements, strategic business partnerships or joint ventures, in each case with non-affiliated third parties effect immediately prior to such Dilutive Issuance and otherwise on an arm’s-length basis, the purpose number of which is not to raise additional capital. Notwithstanding the foregoing, any shares of Common Stock issued or issuable Deemed Outstanding immediately prior to raise capital for such Dilutive Issuance plus (II) the consideration, if any, received by the Company or its subsidiariesupon such Dilutive Issuance, directly or indirectly, by (2) the product derived by multiplying (I) the Applicable Price in connection with any transaction contemplated effect immediately prior to such Dilutive Issuance by clause (iiII) 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 Excluded Securitiesthe number of shares of Common Stock Deemed Outstanding immediately after such Dilutive Issuance. Provided, however, any and all rights For purposes of Holder determining the adjusted Conversion Price under this Section 3(a) 13.09(a), the following shall immediately expire if and when the Company if and when the Company’s common stock becomes listed or quoted on a “national securities exchange” within the meaning of Section 6 of the Securities Exchange Act of 1934, as amended.be applicable:

Adjustment of Conversion Price upon Issuance of Common Stock. Except with respect to Excluded Securities, if If and whenever during on or after the term Subscription Date and prior to the consummation of this Note a Qualified IPO, the Company issues or sells Common Stock, options for common stocksells, or convertible securities in accordance with this Section 7(a) is deemed to have issued or sold, any shares of Common Stock (including the issuance or sale of shares of Common Stock owned or held by or for the account of the Company, but excluding shares of Common Stock issued or sold or deemed to have been issued or sold by the Company with respect to Options to acquire up to 6,000,000 shares of Common Stock that may be awarded by the Company solely to employees, officers and directors for services provided to the Company) for a consideration per share (the “New Conversion Issuance Price”) less than a price (the “Pre-Qualified IPO Applicable Price”) equal to the Conversion Price in effect immediately prior to such issue, conversion, or sale or deemed issuance issue or sale (such Conversion Price then in effect is referred to herein as the “Applicable Price”) (the foregoing issuance, a “Pre-Qualified IPO Dilutive Issuance”), then, then immediately after such Pre-Qualified IPO Dilutive Issuance, the Conversion Price then in effect shall be reduced to an amount equal to the New Conversion Issuance Price. For If and whenever on or after the avoidance consummation of doubta Qualified IPO, if the New Conversion Price is greater than the Applicable PriceCompany issues or sells, there shall be no adjustment to the Conversion Price. For the purposes of or in accordance with this Section 3(a)7(a) is deemed to have issued or sold, “Excluded Securities” means any shares of Common StockStock (including the issuance or sale of shares of Common Stock owned or held by or for the account of the Company, options, restricted stock units or convertible securities but excluding shares of Common Stock issued or issuable (i) sold or deemed to have been issued or sold by the Company in each case solely in connection with any approved stock plan Excluded Security) for a consideration per share less than a price (the “Post-Qualified IPO Applicable Price”) equal to the Market Price then in effect (the foregoing issuance, a “Post-Qualified IPO Dilutive Issuance”), then immediately after such Post-Qualified IPO Dilutive Issuance, the Conversion Price then in effect shall be reduced to an amount equal to the product of (i) the Conversion Price in effect immediately prior to such issuance or sale and (ii) in connection with mergers, acquisitions, strategic licensing arrangements, strategic business partnerships or joint ventures, in each case with nonthe quotient determined by dividing (A) the sum of (1) the product derived by multiplying the Post-affiliated third parties Qualified IPO Applicable Price and otherwise on an arm’s-length basis, the purpose number of which is not to raise additional capital. Notwithstanding the foregoing, any shares of Common Stock issued or issuable Deemed Outstanding immediately prior to raise capital for such Post-Qualified IPO Dilutive Issuance plus (2) the consideration, if any, received by the Company or its subsidiariesupon such Post-Qualified IPO Dilutive Issuance, 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 Excluded Securitiesthe product derived by multiplying (1) the Post-Qualified IPO Applicable Price by (2) the number of shares of Common Stock Deemed Outstanding immediately after such Post-Qualified IPO Dilutive Issuance. Provided, however, any and all rights For purposes of Holder determining the adjusted Conversion Price under this Section 3(a) 7(a), the following shall immediately expire if and when the Company if and when the Company’s common stock becomes listed or quoted on a “national securities exchange” within the meaning of Section 6 of the Securities Exchange Act of 1934, as amended.be applicable: