Common use of Issuance of Additional Common Stock Clause in Contracts

Issuance of Additional Common Stock. (a) If, after the date hereof, the Company shall issue or sell (i) Additional Shares (defined below) without consideration or for a consideration per share that is less than the higher of (A) the Warrant Price and (B) the fair market value of a share of Common Stock in effect immediately prior to such issue or sale, or (ii) Common Stock Equivalents exercisable for Additional Shares with a minimum exercise or exchange price that is less than the higher of (A) the Warrant Price and (B) the fair market value of a share of Common Stock in effect immediately prior to such issue or sale, then, and in each such case, the Warrant Price shall be reduced, concurrently with such issue or sale, to a price (calculated to the nearest .001 of a cent) determined by multiplying such Warrant Price by a fraction: (iii) the numerator of which shall be (A) the number of shares of Common Stock outstanding immediately prior to such issue or sale (including any shares of Common Stock issuable upon conversion of all outstanding shares of preferred stock and issuable upon exercise of outstanding options, warrants or other convertible securities) plus (B) the number of shares of Common Stock that the aggregate consideration received by the Company upon such issuance or sale (or, in the case of Common Stock Equivalents exercisable for Additional Shares, receivable by the Company upon exercise or exchange) would purchase at such Warrant Price, and (iv) the denominator of which shall be the number of shares of Common Stock outstanding immediately after such issue or sale (assuming, in the case of Common Stock Equivalents exercisable for Additional Shares, exercise or exchange of all such Common Stock Equivalents and including any shares of Common Stock issuable upon conversion of outstanding shares of preferred stock and issuable upon exercise of outstanding options, warrants or other convertible securities). (b) For the purposes of this Section 2.5, the consideration for the issue or sale of Additional Shares shall, irrespective of the accounting treatment of such consideration, (i) insofar as it consists of cash, be computed at the net amount of cash received by the Company, and (ii) insofar as it consists of property (including securities) other than cash, be computed at the fair market value thereof at the time of such issue or sale. In the event of a disagreement by the Holder as to the fair market value of any consideration consisting of property proposed to be assigned to such consideration by the Company, the Company shall, at the option of the Holder, engage a consulting firm or investment banking firm mutually agreed to by the Holder and the Company to prepare an independent appraisal of the fair market value of such property to be distributed. The expenses of such appraisal shall be borne by the Company. (c) Notwithstanding anything contained herein to the contrary, the consideration for any Common Stock Equivalents shall be the total amount of consideration received by the Company for the issuance of such Common Stock Equivalents plus the minimum amount of consideration payable to the Company upon exercise, conversion or exchange of Common Stock Equivalents (the “Net Consideration”) determined as of the date of issuance of such Common Stock Equivalents. Any obligation, agreement or understanding to issue Common Stock Equivalents at any time in the future shall be deemed to be an issuance at the time such obligation or agreement is made or arises. No adjustment of the Warrant Price shall be made under this Section 2.5 upon the issuance of any shares of Common Stock which are issued pursuant to the exercise, conversion or exchange of any Common Stock Equivalents if any adjustment shall previously have been made upon the issuance of any such Common Stock Equivalents. Should the Net Consideration for any such Common Stock Equivalents be increased or decreased from time to time, then, upon the effectiveness of such change, the Warrant Price will be that which would have been obtained (i) had the adjustments made upon the issuance of such Common Stock Equivalents been made upon the basis of the actual Net Consideration (as so increased or decreased) of such Common Stock Equivalents, and (ii) had adjustments to such Warrant Price since the date of issuance of such Common Stock Equivalents been made to such Warrant Price as adjusted pursuant to (i) above. Any adjustment of the Warrant Price pursuant to this paragraph which relates to Common Stock Equivalents shall be disregarded if, as, and when all of such Common Stock Equivalents expire or are canceled without being exercised, so that the Warrant Price effective immediately upon cancellation or expiration shall be equal to the Warrant Price in effect at the time of the issuance of the expired or canceled Common Stock Equivalents, with such additional adjustments as would have been made to such Warrant Price had the expired or canceled Common Stock Equivalents not been issued.

Issuance of Additional Common Stock. If at any time the Issuer shall (aexcept as hereinafter provided) If, after the date hereof, the Company shall issue or sell (i) sell any Additional Shares (defined below) without Common Stock in exchange for consideration or for a consideration in an amount per share that is of Additional Common Stock less than the higher Current Market Price at the time the Additional Common Stock is issued, then the number of (A) the Warrant Price and (B) the fair market value of a share shares of Common Stock in effect thereafter comprising a Stock Unit shall be adjusted to that number determined by multiplying the number of shares of Common Stock comprising a Stock Unit immediately prior to such issue or sale, or (ii) Common Stock Equivalents exercisable for Additional Shares with a minimum exercise or exchange price that is less than the higher of (A) the Warrant Price and (B) the fair market value of a share of Common Stock in effect immediately prior to such issue or sale, then, and in each such case, the Warrant Price shall be reduced, concurrently with such issue or sale, to a price (calculated to the nearest .001 of a cent) determined by multiplying such Warrant Price adjustment by a fraction: fraction (iiia) the numerator of which shall be (A) the number of shares of Common Stock outstanding immediately prior to the issuance of such issue or sale (including any shares of Additional Common Stock issuable upon conversion of all outstanding shares of preferred stock and issuable upon exercise of outstanding options, warrants or other convertible securities) plus (B) the number of such shares of Additional Common Stock that the aggregate consideration received by the Company upon such issuance or sale so issued, and (or, in the case of Common Stock Equivalents exercisable for Additional Shares, receivable by the Company upon exercise or exchange) would purchase at such Warrant Price, and (ivb) the denominator of which shall be the number of shares of Common Stock outstanding immediately after prior to the issuance of such issue or sale (assuming, in the case shares of Additional Common Stock Equivalents exercisable for Additional Shares, exercise or exchange plus the number of all such Common Stock Equivalents and including any shares of Common Stock issuable upon conversion which the aggregate consideration for the total number of outstanding such shares of preferred stock and issuable upon exercise of outstanding options, warrants or other convertible securities). (b) Additional Common Stock so issued would purchase at the Current Market Price. For the purposes of this Section 2.56.02, for all issuances of shares of Additional Common Stock except for those shares issued in connection with an acquisition of assets or stock, a tender or exchange offer, a merger or other business combination or in a public offering, the consideration for date as of which the issue or sale Current Market Price shall be computed shall be the earlier of Additional Shares shall, irrespective of the accounting treatment of such consideration, (i) insofar as it consists of cash, be computed at the net amount of cash received by date on which the Company, and (ii) insofar as it consists of property (including securities) other than cash, be computed at the fair market value thereof at the time of such issue or sale. In the event of Issuer shall enter into a disagreement by the Holder as to the fair market value of any consideration consisting of property proposed to be assigned to such consideration by the Company, the Company shall, at the option of the Holder, engage a consulting firm or investment banking firm mutually agreed to by the Holder and the Company to prepare an independent appraisal of the fair market value of such property to be distributed. The expenses of such appraisal shall be borne by the Company. (c) Notwithstanding anything contained herein to the contrary, the consideration for any Common Stock Equivalents shall be the total amount of consideration received by the Company contract for the issuance of such Additional Common Stock Equivalents plus and (ii) the minimum amount date of consideration payable actual issuance of such Additional Common Stock. Subject to Section 6.05 hereof, no further adjustment of the Company upon exercise, conversion or exchange number of shares of Common Stock Equivalents (the “Net Consideration”) determined as of the date of issuance of such Common comprising a Stock Equivalents. Any obligation, agreement or understanding to issue Common Stock Equivalents at any time in the future shall be deemed to be an issuance at the time such obligation or agreement is made or arises. No adjustment of the Warrant Price Unit shall be made under this Section 2.5 6.02 upon the issuance of any shares of Additional Common Stock Stock: (a) for which an adjustment is provided under Section 6.01 hereof; Warrant Agreement (b) which are issued pursuant to the exercise, conversion or exchange exercise of any Common Stock Equivalents Options or the conversion, exchange or exercise of any Convertible Securities, if any such adjustment shall previously have been made upon the issuance of any such Common Stock Equivalents. Should the Net Consideration for any such Common Stock Equivalents be increased Options or decreased from time to time, then, upon the effectiveness of such change, the Warrant Price will be that which would have been obtained Convertible Securities (i) had the adjustments made or upon the issuance of such Common Stock Equivalents been made upon the basis of the actual Net Consideration (as so increased or decreasedany Option therefor) of such Common Stock Equivalents, and (ii) had adjustments to such Warrant Price since the date of issuance of such Common Stock Equivalents been made to such Warrant Price as adjusted pursuant to Section 6.03 or 6.04 hereof; or (ic) above. Any adjustment of the Warrant Price pursuant to this paragraph as a distribution or a dividend which relates to Common Stock Equivalents shall be disregarded if, as, is distributed or declared and when all of such Common Stock Equivalents expire or are canceled without being exercised, so that the Warrant Price effective immediately upon cancellation or expiration shall be equal to the Warrant Price paid in effect at the time of the issuance of the expired or canceled Common Stock Equivalents, accordance with such additional adjustments as would have been made to such Warrant Price had the expired or canceled Common Stock Equivalents not been issuedSection 6.08 hereof.

Issuance of Additional Common Stock. (a) If, after the date hereof, the Company shall issue or sell (i) Additional Shares (defined below) without consideration or for a consideration per share that is less than the higher of (A) the Warrant Price and (B) the fair market value of a share of Common Stock in effect immediately prior to such issue or sale, or (ii) Common Stock Equivalents exercisable for Additional Shares with a minimum exercise or exchange price that is less than the higher of (A) the Warrant Price and (B) the fair market value of a share of Common Stock in effect immediately prior to such each issue or sale, then, and in each such case, the Warrant Price shall be reduced, concurrently with such issue or sale, to a price (calculated to the nearest .001 of a cent) determined by multiplying such Warrant Price by a fraction: (iiii) the numerator of which shall be (A) the number of shares of Common Stock outstanding immediately prior to such issue or sale (including any shares of Common Stock issuable upon conversion of all outstanding shares of preferred stock Preferred Stock and issuable issuance upon exercise of outstanding options, warrants or other convertible securities) plus (B) the number of shares of Common Stock that the aggregate consideration received by the Company upon such issuance or sale (or, in the case of Common Stock Equivalents exercisable for Additional Shares, receivable by the Company upon exercise or exchange) would purchase at such Warrant Price, and (ivii) the denominator of which shall be the number of shares of Common Stock outstanding immediately after such issue or sale (assuming, in the case of Common Stock Equivalents exercisable for Additional Shares, exercise or exchange of all such Common Stock Equivalents and including any shares of Common Stock issuable upon conversion of outstanding shares of preferred stock Preferred Stock and issuable upon exercise of outstanding options, warrants or other convertible securities). (b) For the purposes of this Section 2.5, the consideration for the issue or sale of Additional Shares shall, irrespective of the accounting treatment of such consideration, (i) insofar as it consists of cash, be computed at the net amount of cash received by the Company, and (ii) insofar as it consists of property (including securities) other than cash, be computed at the fair market value thereof at the time of such issue or salesale as determined in good faith by the Company’s Board of Directors. In the event of a disagreement dispute in good faith by the Holder Investor as to the fair market value of any the consideration consisting of property proposed to be assigned to such consideration by the Company, the Company shallproperty, at the option of the HolderInvestor, the Company shall engage a consulting firm or investment banking firm mutually agreed to by the Holder Investor and the Company to prepare an independent appraisal of the fair market value of such property to be distributed. The expenses of such appraisal shall be borne one-half (1/2) by the CompanyCompany and one-half (1/2) by the Investor. (c) Notwithstanding anything contained herein to the contrary, the consideration for any Common Stock Equivalents shall be the total amount of consideration received by the Company for the issuance of such Common Stock Equivalents plus the minimum amount of consideration payable to the Company upon exercise, conversion or exchange of Common Stock Equivalents (the “Net Consideration”) determined as of the date of issuance of such Common Stock Equivalents. Any obligation, agreement or understanding to issue Common Stock Equivalents at any time in the future shall be deemed to be an issuance at the time such obligation or agreement is made or arises. No adjustment of the Warrant Price shall be made under this Section 2.5 upon the issuance of any shares of Common Stock which are issued pursuant to the exercise, conversion or exchange of any Common Stock Equivalents if any adjustment shall previously have been made upon the issuance of any such Common Stock Equivalents. Should the Net Consideration for any such Common Stock Equivalents be increased or decreased from time to time, then, upon the effectiveness of such change, the Warrant Price will be that which would have been obtained (i) had the adjustments made upon the issuance of such Common Stock Equivalents been made upon the basis of the actual Net Consideration (as so increased or decreased) of such Common Stock Equivalents, and (ii) had adjustments to such Warrant Price since the date of issuance of such Common Stock Equivalents been made to such Warrant Price as adjusted pursuant to (i) above. Any adjustment of the Warrant Price pursuant with respect to this paragraph which relates to Common Stock Equivalents shall be disregarded if, as, and when all of such Common Stock Equivalents expire or are canceled without being exercised, so that the Warrant Price effective immediately upon cancellation or expiration shall be equal to the Warrant Price in effect at the time of the issuance of the expired or canceled Common Stock Equivalents, with such additional adjustments as would have been made to such Warrant Price had the expired or canceled Common Stock Equivalents not been issued.