Common use of Adjustment of Price Upon Issuance of Common Stock Clause in Contracts

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. 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 X Preferred Stock by obtaining the written consent of the holders of a majority of the then outstanding shares of Series Y X Preferred Stock. The terms of the Series Y X Preferred Stock shall be amended to exclude from the requirement to make adjustments of the Conversion Price applicable to the Series Y X Preferred Stock (1) the issuance issuance, sale 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 X 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. Except as provided in subsections 3(e) and 3(f), if If and whenever the Corporation shall issue or sell, or is, in accordance with subsections 3(d)(isubparagraphs 5.5(a) through 3(d)(vii5.5(g), deemed to have issued or sold, any shares of Common Stock or other equity securities of the Corporation or any Options (as defined below) or Convertible Securities (as defined below) for a consideration price per share less than the applicable Conversion Price in effect for the Series A Preferred immediately prior to the time of such issue or sale (such number being appropriately adjusted except for (A) shares issued in connection with the conversion of Series A Preferred or (B) the issuance of options, warrants or other common stock equivalents or shares issued upon the exercise of options, warrants or other common stock equivalents to reflect directors, officers or employees of the occurrence Corporation which are approved by the Compensation Committee of any event described in subsection 3(f)the Corporation's Board of Directors) (the a "Dilutive Financing PriceFinancing"), then, forthwith upon such issue or sale, the applicable Conversion Price shall be reduced to by multiplying the price determined Conversion Price in effect immediately before the issuance or sale by dividing (i) an amount equal to a fraction, the sum numerator of (a) which is the number of shares of Common Stock outstanding that are Outstanding on an As-Converted Basis (as defined below) immediately prior to such issue or sale multiplied by before the then existing Conversion Price and (b) Dilutive Financing plus 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 that could be purchased at the Conversion Price immediately prior to such issue before the time of the Dilutive Financing for the aggregate consideration paid or payable upon the sale or issuance of Common Stock or other securities in the Dilutive Financing, and (b) the total denominator of which is the number of shares of Common Stock issuable that are Outstanding on an As-Converted Basis immediately before the Dilutive Financing plus the number of shares that are acquired or to be acquired upon the sale or issuance of the Common Stock and other securities in such issue or salethe Dilutive Financing. For purposes hereof of this SECTION 5.5, "Outstanding on an As-Converted Basis" immediately before the Dilutive Financing means the sum of (i) all shares of Common Stock issuable upon conversion of issued and outstanding immediately before the Dilutive Financing plus (ii) all Common Stock that would be issued if all Series A Preferred, Options and other Convertible Securities (both were converted or exercised, 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 applicable, hereunder immediately before the Corporation) immediately prior to such issue or sale shall be deemed to be outstanding for the Dilutive Financing. For purposes of clauses this SECTION 5.5., the following subparagraphs (i)(aa) and to (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(eg) shall read in its entirety as followsalso be applicable: