Adjustment of Price Upon Issuance of Common Stock. If and whenever after the date hereof, the Company shall issue or sell any shares of Common Stock for a consideration per share less than 95% of the Market Price (as hereinafter defined) at the time of such issue or sale, then forthwith upon such issue or sale, the Exercise Price shall be reduced to the price determined as follows: by multiplying the then existing Exercise Price by a fraction (A) the numerator of which shall be the number of shares of Common Stock Deemed Outstanding immediately prior to such issue or sale plus the number of shares of Common Stock which the aggregate offering price of the total number of shares of Common Stock so to be offered would purchase at the then current Market Price (or 95% of the then current Market Price if the issue or sale is pursuant to a private placement and no underwriter is involved) and (b) the denominator of
Adjustment of Price Upon Issuance of Common Stock. If prior to December 31, 2002, the Company shall issue or sell (or, in accordance with Section 3(b), shall be deemed to have issued and sold) any shares of Common Stock for a consideration per share (the "Issuance Price") less than the Exercise Price in effect immediately prior to such issue or sale, then, upon such issue or sale, the Exercise Price shall be reduced to an amount equal to the Issuance Price. For purposes of this Section 3(a) any issuance or sale (or deemed issuance and sale) for no consideration shall be deemed to be an issue or sale at an Issuance Price or $.01.
Adjustment of Price Upon Issuance of Common Stock. If and whenever the Company shall issue or sell any shares of its Common Stock (as defined in Section 3(h)) in a transaction described in paragraphs (a), (b) or (c) of this Section 3, for a consideration per share less than the Warrant Price in effect immediately prior to the time of such issue or sale, then, forthwith upon such issue or sale, the Warrant Price shall be reduced to the price (calculated to the nearest $.001) determined by dividing: (a) an amount equal to the sum of (x) the number of shares of Common Stock outstanding immediately prior to such issue or sale multiplied by the then existing Warrant Price, and (y) the consideration, if any, received by the Company upon such issue or sale; by (b) the total number of shares of Common Stock outstanding immediately after such issue or sale (including as outstanding all shares of Common Stock issuable upon exercise of this Warrant immediately prior to such issue or sale). No adjustments of the Warrant Price, however, shall be made in an amount less than $.001 per share, but any such lesser adjustment shall be carried forward and shall be made at the time and together with the next subsequent adjustment which together with any adjustments so carried forward shall amount to $.001 per share or more. For purposes of this Section 3, the following paragraphs (a) to (h), inclusive, shall be applicable:
Adjustment of Price Upon Issuance of Common Stock. Except as provided in subsections 3(e) and 3(f), if and whenever the Corporation shall issue or sell, or is, in accordance with subsections 3(d)(i) through 3(d)(vii), deemed to have issued or sold, any shares of Common Stock for a consideration per share less than the Conversion Price in effect immediately prior to the time of such issue or sale (such number being appropriately adjusted to reflect the occurrence of any event described in subsection 3(f)) (the "Dilutive Financing Price"), then, forthwith upon such issue or sale, the applicable Conversion Price shall be reduced to the price determined by dividing (i) an amount equal to the sum of (a) the number of shares of Common Stock outstanding immediately prior to such issue or sale multiplied by the then existing Conversion Price and (b) the consideration, if any, received by the Corporation upon such issue or sale, by (ii) an amount equal to the sum of (a) the total number of shares of Common Stock outstanding immediately prior to such issue or sale and (b) the total number of shares of Common Stock issuable in such issue or sale. For purposes hereof all shares of Common Stock issuable upon conversion of outstanding Options and Convertible Securities (both as defined below) (including all outstanding shares of Series X Preferred Stock and Series Y Preferred Stock and all outstanding warrants to purchase shares of capital stock of the Corporation) immediately prior to such issue or sale shall be deemed to be outstanding for the purposes of clauses (i)(a) and (ii)(a). The provisions of this subsection 3(d) may be waived in any instance, without a meeting, prospectively or retroactively, by the holders of the Series Y Preferred Stock by obtaining the written consent of the holders of a majority of the then outstanding shares of Series Y Preferred Stock. The terms of the Series Y Preferred Stock shall be amended to exclude from the requirement to make adjustments of the Conversion Price applicable to the Series Y Preferred Stock (1) the issuance and exercise of the Warrants, (2) the issuance of shares of Common Stock as payment of interest in accordance with the terms of the Notes and (3) the issuance and exercise of certain warrants to be issued to VantagePoint Venture Partners III (Q), L.P. by amending and restating Section 3(e) of the Series Y Certificate of Designation in its entirety, so that as so amended and restated such Section 3(e) shall read in its entirety as follows:
Adjustment of Price Upon Issuance of Common Stock. If and whenever the Corporation shall issue or sell any shares of its Common Stock for a consideration per share less than the Warrant Exercise Price in effect immediately prior to the time of such issue or sale, then, forthwith upon such issue or sale the Warrant Exercise Price shall be reduced to the price (calculated to the nearest $.01) determined by dividing (i) an amount equal to the sum of (a) the number of shares of Common Stock outstanding immediately prior to such issue or sale (including as outstanding all shares of Common Stock issuable upon conversion of all outstanding Convertible Securities (as hereinafter defined) or exercise of outstanding Warrants multiplied by the then existing Warrant Exercise Price, and (b) the consideration, if any, received by the Corporation upon such issue or sale, by (ii) the total number of shares of Common Stock outstanding immediately after such issue or sale (including as outstanding all shares of Common Stock issuable upon conversion of all outstanding Convertible Securities or exercise of outstanding Warrants). No adjustments of the Warrant Exercise Price, however, shall be made in an amount less than $.01 per share, but any such lesser adjustment shall be carried forward and shall be made at the time and together with the next subsequent adjustment which together with any adjustments so carried forward shall amount to $.01 per share or more. For purposes of this Section 3, the following paragraphs (a) to (p), inclusive, shall also be applicable:
Adjustment of Price Upon Issuance of Common Stock. Except as provided in subparagraph 6E, if and whenever the Corporation shall issue or sell, or is, in accordance with subparagraph 6D(1) through 6D(7), deemed to have issued or sold, any shares of Common Stock for a consideration per share less than the Conversion Price in effect immediately prior to the time of such issue or sale, then, forthwith upon such issue or sale, the Conversion Price shall be reduced to the price at which the Corporation issued or sold, or is deemed to have issued or sold, such shares of Common Stock. For purposes of this subparagraph 6D, the following subparagraphs 6D(1) to 6D(7) shall also be applicable:
Adjustment of Price Upon Issuance of Common Stock. Except as provided in subparagraph 6E, if and whenever the Corporation shall issue or sell, or is, in accordance with subparagraphs 6D(1) through 6D(7), deemed to have issued or sold, any shares of Common Stock for a consideration per share less than the Series A Conversion Price then in effect immediately prior to the time of such issue or sale, then, forthwith upon such issue or sale, the Series A Conversion Price shall be reduced to the price determined by dividing (i) an amount equal to the sum of (a) the number of shares of Common Stock outstanding immediately prior to such issue or sale multiplied by the then existing Series A Conversion Price and (b) the consideration, if any, received by the Corporation upon such issue or sale, by (ii) the total number of shares of Common Stock outstanding immediately after such issue or sale. For purposes of this subparagraph 6D, the following subparagraphs 6D(1) to 6D(7) shall also be applicable:
Adjustment of Price Upon Issuance of Common Stock. Except with respect to the issuance of shares of Class A Common Stock that constitute a Permitted Stock Transaction under Subsection 5.7 of the 1994 Purchase Agreement, if and whenever the Company shall issue or sell any shares of its Common Stock (as defined in paragraph (n) of this Section 3) for a consideration per share less than the Warrant Price in effect immediately prior to the time of such issue or sale, then, forthwith upon such issue or sale, the Warrant Price shall be reduced to the price (calculated to the nearest $.001) determined by dividing (a) an amount equal to the sum of: (x) the number of shares of Common Stock outstanding immediately prior to such issue or sale (including as outstanding all shares of Class A Common Stock issuable upon exercise of this Warrant immediately prior to such issue or sale) multiplied by the then existing Warrant Price; and (y) the consideration, if any, received by the Company upon such issue or sale, by (b) the total number of shares of Common Stock outstanding immediately after such issue or sale (including as outstanding all shares of Class A Common Stock issuable upon exercise of this Warrant immediately prior to such issue or sale). No adjustments of the Warrant Price, however, shall be made in an amount less than $.001 per share, but any such lesser adjustment shall be carried forward and shall be made at the time and together with the next subsequent adjustment which together with any adjustments so carried forward shall amount to $.001 per share or more. For purposes of this Section 3, the following paragraphs (a) to (n), inclusive, shall also be applicable.
Adjustment of Price Upon Issuance of Common Stock. Except as provided in subparagraph 6E, if and whenever the Corporation shall issue or sell, or is, in accordance with subparagraphs 6D(1) through 6D(7), deemed to have issued or sold, any shares of Common Stock for a consideration per share less than the Series A Conversion Price or Series B Conversion Price, as the case may be (the "Applicable Conversion Price"), in effect immediately prior to the time of such issue or sale, then, forthwith upon such issue or sale, the Applicable Conversion Price shall be reduced to the price determined by dividing (i) an amount equal to the sum of (a) the number of shares of Common Stock outstanding immediately prior to such issue or sale multiplied by the then existing Applicable Conversion Price and (b) the consideration, if any, received by the Corporation upon such issue or sale, by (ii) the total number of shares of Common Stock outstanding immediately after such issue or sale. For purposes of this subparagraph 6D, the following subparagraphs 6D(1) to 6D(7) shall also be applicable:
Adjustment of Price Upon Issuance of Common Stock. The adjustments provided for in this Section 3 shall be made for any events occurring on or after August 31, 1998.
