Common use of Common Stock Issuances Clause in Contracts

Common Stock Issuances. In the event that the Company or any of its subsidiaries on or subsequent to the Closing Date (A) issues or sells any Common Stock or any Convertible Securities (other than (I) Debentures and warrants, as amended and restated as of April 15, 2004 and as further amended and restated as of September 15, 2004 (the “Warrants”) under the Purchase Agreement, (II) Xxxxxxx Purchased Shares and Option Shares under the Xxxxxxx Purchase Agreement (as defined below), (III) Common Stock or Convertible Securities pursuant to the Other Related Offerings (as defined below) effected substantially contemporaneously with the Xxxxxxx Purchase Agreement (containing substantially the same terms as the Xxxxxxx Purchase Agreement other than the amount of shares purchased and the aggregate purchase price paid), including shares of Common Stock issued or issuable (including pursuant to options) to Portside Growth & Opportunity Fund (“Portside”) pursuant to the terms of the Securities Purchase Agreement dated as of April 15, 2004 entered into by and between the Company and Portside, and (IV) the Reedland Warrants (and shares of Common Stock to be issued pursuant to the Restated Non-Circumvention and Finder’s Fee Agreement, entered into between the Company and Reedland Capital Partners, an Institutional Division of Financial West Group, as of March 23, 2004)) or (B) reduces the conversion, exercise or exchange price for any Convertible Securities which are currently outstanding (other than pursuant to terms existing on the date hereof, including the terms of the Reedland Warrants), at or to an effective Per Share Selling Price which is less than the Conversion Price in effect immediately prior to such issue or sale or record date as applicable, then the Conversion Price shall, subject to readjustments as set forth in the definition of “Per Share Selling Price,” be reduced effectively concurrently with such issuance or sale equal such lower Per Share Selling Price; provided that (i) the aggregate purchase price received by the Company pursuant to all such issuances or sales, or (ii) the number equal to (x) the amount by which the Conversion Price exceeds the Per Share Selling Price multiplied by (y) the number of shares of Common Stock then issuable upon conversions of such Convertible Securities, as applicable, exceeds: (A) in the case of conversion of Indebtedness for borrowed money existing as of the Closing Date, $10 million; or (B) in all other cases $1 million. For purposes of determining the foregoing amounts, all issuances, sales of Common Stock or Convertible Securities, and reduction in the conversion prices thereof, shall be aggregated from the date of this Debenture forward. Notwithstanding the foregoing, no adjustment to the Conversion Price shall be made hereunder upon issuance of any Excluded Securities. For purposes hereof, “Excluded Securities” means (1) shares of Common Stock issued or issuable to employees, consultants or directors from time to time upon exercise of options, in such case granted or to be granted by the Board of Directors pursuant to one or more stock option plans or restricted stock plans in effect as of the Closing Date; or (2) shares of common stock issued in connection with the acquisition by the Company of any other corporation or entity or other strategic transaction including, without limitation, additional investments in companies the Company had existing investments in on the Closing Date.

Common Stock Issuances. In the event that the Company or any of its subsidiaries on or subsequent to the Closing Date (A) issues or sells any Common Stock or any Convertible Securities (other than (I) Debentures and warrants, as amended and restated as of April 15, 2004 and as further amended and restated as of September 15, 2004 (the “Warrants”) under the Purchase Agreement, (II) Xxxxxxx Purchased Shares and Option Shares under the Xxxxxxx Purchase Agreement (as defined below), (III) Common Stock or Convertible Securities pursuant to the Other Related Offerings (as defined below) effected substantially contemporaneously with the Xxxxxxx Purchase Agreement (containing substantially the same terms as the Xxxxxxx Purchase Agreement other than the amount of shares purchased and the aggregate purchase price paid), including shares of Common Stock issued or issuable (including pursuant to options) to Portside Growth & Opportunity Fund (“Portside”) pursuant to the terms of the Securities Purchase Agreement dated as of April 15, 2004 entered into by and between the Company and Portside, and (IV) the Reedland Warrants (and shares of Common Stock to be issued pursuant to the Restated Non-Circumvention and Finder’s Fee Agreement, entered into between the Company and Reedland Capital Partners, an Institutional Division of Financial West Group, as of March 23, 2004)) or (B) directly or indirectly effectively reduces the conversion, exercise or exchange price for any Convertible Securities which are currently outstanding (other than pursuant to terms existing on the date hereof, including the terms of the Reedland Warrants)outstanding, at or to an effective Per Share Selling Price which is less than the Conversion Price, then in each such case the Conversion Price in effect immediately prior to such issue or sale or record date date, as applicable, then shall be automatically reduced effective concurrently with such issue or sale to an amount determined by multiplying the Conversion Price shallthen in effect by a fraction, subject to readjustments as set forth in the definition of “Per Share Selling Price,” be reduced effectively concurrently with such issuance or sale equal such lower Per Share Selling Price; provided that (i) the aggregate purchase price received by the Company pursuant to all such issuances or sales, or (ii) the number equal to (x) the amount by numerator of which shall be the Conversion Price exceeds the Per Share Selling Price multiplied by sum of (y1) the number of shares of Common Stock then issuable upon conversions outstanding immediately prior to such issue or sale, plus (2) the number of shares of Common Stock which the aggregate consideration received by the Company for such Convertible Securities, as applicable, exceeds: additional shares would purchase at such Conversion Price and (Ay) in the case denominator of conversion which shall be the number of Indebtedness for borrowed money existing as shares of Common Stock of the Closing Date, $10 million; Company outstanding immediately after such issue or (B) in all other cases $1 millionsale. For purposes of determining the The foregoing amounts, all issuances, provision shall not apply to any issuances or sales of Common Stock or Convertible SecuritiesSecurities (i) pursuant to any Convertible Securities currently outstanding on the date hereof in accordance with the terms of such Convertible Securities in effect on the date hereof, (ii) pursuant to the Notes, (iii) to any officer, director, employee or Consultant (as defined below) of the Company pursuant to a bona fide option or equity incentive plan duly adopted by the Company, provided that any such issuances or sales to Consultants must be reasonable consideration for the services rendered by such Consultants and reduction shall not exceed more than $1 million in market value to all Consultants in the conversion prices thereofaggregate under any circumstances, or (iv) made in connection with mergers, acquisitions, licenses or other similar strategic transactions, provided any such issuance shall only be aggregated from made in connection with a transaction involving a Person which is, itself or through its subsidiaries, an operating company in a business synergistic with the date business of this Debenture forward. Notwithstanding the foregoing, no adjustment Company and in which the Company receives substantial benefits in addition to the Conversion Price investment of funds, but shall be made hereunder upon issuance not include a transaction in which the Company is issuing securities primarily for the purpose of any Excluded Securities. For purposes hereof, “Excluded Securities” means (1) shares of Common Stock issued or issuable to employees, consultants or directors from time to time upon exercise of options, in such case granted raising capital or to be granted by an entity whose primary business is investing in securities. “Consultant” shall mean any natural person providing bona fide services to the Board of Directors pursuant to one or more stock option plans or restricted stock plans in effect as of the Closing Date; or (2) shares of common stock issued Company which are not in connection with the acquisition by offer or sale of securities in a capital raising transaction and which do not directly or indirectly promote or maintain a market for the Company’s securities. The Company shall give to the Holder written notice of any other corporation such sale of Common Stock within 24 hours of the closing of any such sale and shall within such 24 hour period issue a press release announcing such sale if such sale is a material event for, or entity or other strategic transaction includingotherwise material to, without limitation, additional investments in companies the Company had existing investments in on the Closing DateCompany.

Common Stock Issuances. In the event that the Company or any of its subsidiaries on or subsequent to the Closing Date (A) Subsidiary issues or sells any Common Stock or any Convertible Securities securities which are convertible into or exchangeable for its Common Stock (other than (I) Debentures and warrants, as amended and restated as of April 15, 2004 and as further amended and restated as of September 15, 2004 (the “Warrants”) Shares issued under the Purchase Agreement, (II) Xxxxxxx Purchased Shares and Option Shares under the Xxxxxxx Purchase Agreement (as defined below), (III) or any warrants or other rights to subscribe for or to purchase or any options for the purchase of its Common Stock or Convertible Securities pursuant to the Other Related Offerings (as defined below) effected substantially contemporaneously with the Xxxxxxx Purchase Agreement (containing substantially the same terms as the Xxxxxxx Purchase Agreement other than the amount of shares purchased and the aggregate purchase price paid), including shares of Common Stock or options issued or issuable (including pursuant to options) to Portside Growth & Opportunity Fund (“Portside”) pursuant to the terms of the Securities Purchase Agreement dated as of April 15, 2004 entered into by and between the Company and Portside, and (IV) the Reedland Warrants (and shares of Common Stock to which may be issued pursuant to (i) the Restated Non-Circumvention and Finder’s Fee AgreementCompany's employee or director option plans or shares issued upon exercise of options, entered into between the Company and Reedland Capital Partners, an Institutional Division of Financial West Group, as of March 23, 2004)) warrants or (B) reduces the conversion, exercise or exchange price for any Convertible Securities which are currently rights outstanding (other than pursuant to terms existing on the date hereofof this Warrant and listed in the Company's SEC filings); (ii) the Company's employee stock purchase plan; (iii) the Company's Series E 6% Cumulative Convertible Preferred Stock; and (iv) the Company's equity line with The Gleneagles Fund Company (counting Convertible Securities as if such securities were converted, including exercised or exchanged) based on the terms Fair Market Price at the time of the Reedland Warrants), issuance of such securities) at or to an effective Per Share Selling Price purchase price per share which is less than the Conversion Exercise Price, then in each such case, the Exercise Price in effect immediately prior to such issue or sale or record date date, as applicable, then the Conversion Price shall, subject to readjustments as set forth in the definition of “Per Share Selling Price,” shall be reduced effectively effective concurrently with such issuance issue or sale equal such lower Per Share Selling Price; provided that (i) to an amount determined by multiplying the aggregate purchase price received Exercise Price then in effect by the Company pursuant to all such issuances or salesa fraction, or (ii) the number equal to (x) the amount by numerator of which shall be the Conversion Price exceeds the Per Share Selling Price multiplied by sum of (y1) the number of shares of Common Stock then outstanding immediately prior to such issue or sale, plus (2) the number of shares of Common Stock which the aggregate consideration received by the Company for such additional shares would purchase at such Exercise Price, and (y) the denominator of which shall be the number of shares of Common Stock of the Company outstanding immediately after such issue or sale. For the purposes of the foregoing adjustment, in the case of the issuance of any convertible securities, warrants, options or other rights to subscribe for or to purchase or exchange for, shares of Common Stock ("CONVERTIBLE SECURITIES"), the maximum number of shares of Common Stock issuable upon conversions exercise, exchange or conversion of such Convertible Securities shall be deemed to be outstanding, provided that no further adjustment shall be made upon the actual issuance of Common Stock upon exercise, exchange or conversion of such Convertible Securities, as applicable, exceeds: (A) in the case of conversion of Indebtedness for borrowed money existing as of the Closing Date, $10 million; or (B) in all other cases $1 million. For purposes of determining the foregoing amounts, all issuances, sales of Common Stock or With respect to Convertible Securities, and reduction in the conversion prices thereof, effective purchase price per share shall be aggregated from the date of this Debenture forward. Notwithstanding the foregoing, no adjustment equal to the Conversion Price shall be made hereunder upon issuance of any Excluded Securities. For purposes hereof, “Excluded Securities” means (1) lowest price at which shares of Common Stock may be issued on conversion, exercise or issuable to employees, consultants or directors from time to time upon exercise of options, in such case granted or to be granted by the Board of Directors pursuant to one or more stock option plans or restricted stock plans in effect as exchange of the Closing Date; Convertible Securities at the time the adjustment is being calculated. If such lowest price may change after issuance of the Convertible Securities (for example, by reason of adjustments or (2) shares of common stock issued resets resulting from changes in connection with the acquisition by market price for the Company of Common Stock, or for any other corporation or entity or other strategic transaction including, without limitation, additional investments in companies the Company had existing investments in on the Closing Datereason) then this adjustment shall be recomputed to reflect such new "lowest price."

Common Stock Issuances. In the event that the Company or any of its subsidiaries on or subsequent to the Closing Date (A) Subsidiary issues or sells any Common Stock or any Convertible Securities securities which are convertible into or exchangeable for its Common Stock (other than (I) Debentures and warrants, as amended and restated as of April 15, 2004 and as further amended and restated as of September 15, 2004 (the “Warrants”) Shares issued under the Purchase Agreement, (II) Xxxxxxx Purchased Shares and Option Shares under the Xxxxxxx Purchase Agreement (as defined below), (III) or any warrants or other rights to subscribe for or to purchase or any options for the purchase of its Common Stock or Convertible Securities pursuant to the Other Related Offerings (as defined below) effected substantially contemporaneously with the Xxxxxxx Purchase Agreement (containing substantially the same terms as the Xxxxxxx Purchase Agreement other than the amount of shares purchased and the aggregate purchase price paid), including shares of Common Stock or options issued or issuable (including pursuant to options) to Portside Growth & Opportunity Fund (“Portside”) pursuant to the terms of the Securities Purchase Agreement dated as of April 15, 2004 entered into by and between the Company and Portside, and (IV) the Reedland Warrants (and shares of Common Stock to which may be issued pursuant to (i) the Restated Non-Circumvention and Finder’s Fee AgreementCompany's current employee or director option plans or shares issued upon exercise of options, entered into between the Company and Reedland Capital Partners, an Institutional Division of Financial West Group, as of March 23, 2004)) warrants or (B) reduces the conversion, exercise or exchange price for any Convertible Securities which are currently rights outstanding (other than pursuant to terms existing on the date hereofof this Warrant and listed in the Company's SEC filings, including or (ii) strategic corporate alliances not undertaken principally for financing purposes) (counting Convertible Securities as if such securities were converted, exercised or exchanged) based on the terms Fair Market Price at the time of the Reedland Warrants), issuance of such securities) at or to an effective Per Share Selling Price purchase price per share which is less than the Conversion greater of (1) the Fair Market Price on the Trading Day next preceding such issue or sale or, in the case of issuances to holders of its Common stock, the date fixed for the determination of stockholders entitled to receive such warrants, rights, or options, or (2) the Exercise Price, then in each such case, the Exercise Price in effect immediately prior to such issue or sale or record date date, as applicable, then the Conversion Price shall, subject to readjustments as set forth in the definition of “Per Share Selling Price,” shall be reduced effectively effective concurrently with such issuance issue or sale equal such lower Per Share Selling Price; provided that (i) to an amount determined by multiplying the aggregate purchase price received Exercise Price then in effect by the Company pursuant to all such issuances or salesa fraction, or (ii) the number equal to (x) the amount by numerator of which shall be the Conversion Price exceeds the Per Share Selling Price multiplied by sum of (y1) the number of shares of Common Stock outstanding immediately prior to such issue or sale, plus (2) the number of shares of Common Stock which the aggregate consideration received by the Company for such additional shares would purchase at such Exercise Price or Fair Market Price, as the case may be, and (y) the denominator of which shall be the number of shares of Common Stock of the Company outstanding immediately after such issue or sale; PROVIDED, HOWEVER, that this Section 13(c) shall not apply if such effective purchase price per share is greater than the Exercise Price. For purposes of the preceding paragraph, in the event that the effective purchase price is less than both the Fair Market Price and the Exercise Price, then the calculation method which yields the greatest downward adjustment in the Exercise Price shall be used. For the purposes of the foregoing adjustment, in the case of the issuance of any Convertible Securities, the maximum number of shares of Common Stock issuable upon conversions exercise, exchange or conversion of such Convertible Securities shall be deemed to be outstanding, provided that no further adjustment shall be made upon the actual issuance of Common Stock upon exercise, exchange or conversion of such Convertible Securities, as applicable, exceeds: (A) in the case of conversion of Indebtedness for borrowed money existing as of the Closing Date, $10 million; or (B) in all other cases $1 million. For purposes of determining the foregoing amounts, all issuances, sales of Common Stock or Convertible Securities, and reduction in the conversion prices thereof, shall be aggregated from the date of this Debenture forward. Notwithstanding the foregoing, no adjustment to the Conversion Price shall be made hereunder upon issuance of any Excluded Securities. For purposes hereof, “Excluded Securities” means (1) shares of Common Stock issued or issuable to employees, consultants or directors from time to time upon exercise of options, in such case granted or to be granted by the Board of Directors pursuant to one or more stock option plans or restricted stock plans in effect as of the Closing Date; or (2) shares of common stock issued in connection with the acquisition by the Company of any other corporation or entity or other strategic transaction including, without limitation, additional investments in companies the Company had existing investments in on the Closing Date.

Common Stock Issuances. In the event that the Company or any of its subsidiaries on or subsequent to the Closing Date (A) issues or sells any Common Stock or any Convertible Securities (other than (I) Debentures and warrants, as amended and restated as of April 15, 2004 and as further amended and restated as of September 15, 2004 (the “Warrants”) Warrants under the Purchase Agreement, (II) Xxxxxxx Purchased Shares and Option Shares under the Xxxxxxx Purchase Agreement (as defined below), (III) Common Stock or Convertible Securities pursuant to the Other Related Offerings (as defined below) effected substantially contemporaneously with the Xxxxxxx Purchase Agreement (containing substantially the same terms as the Xxxxxxx Purchase Agreement other than the amount of shares purchased and the aggregate purchase price paid), including shares of Common Stock issued or issuable (including pursuant to options) to Portside Growth & Opportunity Fund (“Portside”) pursuant to the terms of the Securities Purchase Agreement dated as of April 15, 2004 entered into by and between the Company and Portside, and (IV) the Reedland Warrants (and shares of Common Stock to be issued pursuant to the Restated Non-Circumvention and Finder’s Fee Agreement, entered into between the Company and Reedland Capital Partners, an Institutional Division of Financial West Group, as of March 23, 2004)) or (B) reduces the conversion, exercise or exchange price for any Convertible Securities which are currently outstanding (other than pursuant to terms existing on the date hereof, including the terms of the Reedland Warrants), at or to an effective Per Share Selling Price which is less than the Conversion Price in effect immediately prior to such issue or sale or record date as applicable, then the Conversion Price shall, subject to readjustments as set forth in the definition of “Per Share Selling Price,” be reduced effectively concurrently with such issuance or sale equal such lower Per Share Selling Price; provided that (i) the aggregate purchase price received by the Company pursuant to all such issuances or sales, or (ii) the number equal to (x) the amount by which the Conversion Price exceeds the Per Share Selling Price multiplied by (y) the number of shares of Common Stock then issuable upon conversions of such Convertible Securities, as applicable, exceeds: (A) in the case of conversion of Indebtedness for borrowed money existing as of the Closing Date, $10 million; or (B) in all other cases $1 million. For purposes of determining the foregoing amounts, all issuances, sales of Common Stock or Convertible Securities, and reduction in the conversion prices thereof, shall be aggregated from the date of this Debenture forward. Notwithstanding the foregoing, no adjustment to the Conversion Price shall be made hereunder upon issuance of any Excluded Securities. For purposes hereof, “Excluded Securities” means (1) shares of Common Stock issued or issuable to employees, consultants or directors from time to time upon exercise of options, in such case granted or to be granted by the Board of Directors pursuant to one or more stock option plans or restricted stock plans in effect as of the Closing Date; or (2) shares of common stock issued in connection with the acquisition by the Company of any other corporation or entity or other strategic transaction including, without limitation, additional investments in companies the Company had existing investments in on the Closing Date.