Common use of Consideration for Stock Clause in Contracts

Consideration for Stock. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for cash (except as contemplated in Section 2.4 of the Purchase Agreement), the consideration received therefor shall be deemed to be the net amount received by the Company therefor, after deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a 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 in good faith by the Board of Directors of the Company, after deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued for such consideration as determined in good faith by the Board of Directors of the Company. If Common Stock, Options or Convertible Securities shall be issued or sold by the Company and, in connection therewith, other Options or Convertible Securities (the “Additional Rights”) are issued, then the consideration received or deemed to be received by the Company shall be reduced by the fair market value of the Additional Rights (as determined using the Black-Scholes option pricing model or another method mutually agreed to by the Company and the Investor). The Board of Directors of the Company shall respond promptly, in writing, to an inquiry by the Investors as to the fair market value of the Additional Rights. In the event that the Board of Directors of the Company and the Investors are unable to agree upon the fair market value of the Additional Rights, the Company and the Investors shall jointly select an appraiser, who is experienced in such matters. The decision of such appraiser shall be final and conclusive, and the cost of such appraiser shall be borne evenly by the Company and the Investor.

Consideration for Stock. In case any shares of Common Stock, ----------------------- Options or Convertible Securities shall be issued or sold for cash (except as contemplated in Section 2.4 of cash, or offered by the Purchase Agreement)Company for subscription, the consideration received therefor shall be deemed to be the net amount received by the Company therefortherefor plus any additional consideration payable to the Company upon the exercise, conversion or exchange of such Common Stock, Options or Convertible Securities, excluding any amounts paid or receivable for accrued interest or accrued dividends and after deduction deducting therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a 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 in good faith by the Board of Directors of the Company, after deduction of deducting any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. The amount of consideration deemed to be received by the Company pursuant to the foregoing provisions of this paragraph 3D(5) upon any issuance and/or sale, pursuant to an established compensation plan of the Company, to directors, officers or employees of the Company in connection with their employment, of shares of Common Stock, Options or Convertible Securities, shall be increased by the amount of any tax benefit realized by the Company as a result of such issuance and/or sale, the amount of such tax benefit being the amount by which the Federal and/or State income or other tax liability of the Company shall be reduced by reason of any deduction or credit in respect of such issuance and/or sale. In case any shares of Common Stock, Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the fair value as determined by the Board of Directors of the Company of such portion of the assets and business of the non-surviving corporation as such Board shall determine to be attributable to such Common Stock, Options or Convertible Securities as the case may be. In case any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration. In the event of any consolidation or merger of the Company in which the Company is not the surviving corporation or in the event of any sale of all or substantially all of the assets of the Company for stock or other securities of any corporation, the Company shall be deemed to have issued a number of shares of its Common Stock for stock or securities of the other corporation computed on the basis of the actual exchange ratio on which the transaction was predicated and for a consideration equal to the fair market value on the date of such transaction of such stock or securities of the other corporation, and if any such calculation results in adjustment of the Warrant Purchase Price, the determination of the number of shares of Common Stock receivable upon exercise of the Warrants immediately prior to such merger, consolidation or sale, for purposes of this paragraph 3D, shall be made after giving effect to such adjustment of the Warrant Purchase Price. In all cases where the amount of consideration as received by the Company upon the issuance or sale of any Common Stock, Options, or Convertible Securities is to be determined in good faith by the Board of Directors of the Company. If Common Stock, Options or Convertible Securities the Board shall be issued or sold by notify the Company and, in connection therewith, other Options or Convertible Securities (the “Additional Rights”) are issued, then holder of this Warrant of its determination of the consideration received prior to payment or deemed accepting receipt thereof. If, within ten days after receipt of said notice, the holder of this Warrant shall notify the Board of any objection to be received by the Company shall be reduced by such determination of consideration, a determination of the fair market value of the Additional Rights (as determined using consideration will then be made by arbitration in accordance with the Black-Scholes option pricing model or another method mutually agreed to by the Company and the Investor). The Board of Directors Rules of the Company shall respond promptlyAmerican Arbitration Association, by an arbitrator in writingthe City of San Francisco, to an inquiry by the Investors as to the fair market value of the Additional Rights. In the event that the Board of Directors of the Company and the Investors are unable to agree upon the fair market value of the Additional Rights, the Company and the Investors shall jointly select an appraiser, who is experienced in such matters. The decision of such appraiser shall be final and conclusive, and the cost of such appraiser shall be borne evenly by the Company and the InvestorCalifornia.

Consideration for Stock. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for cash (except as contemplated in Section 2.4 of the Purchase Agreement)cash, the consideration received therefor shall be deemed to be the net amount received by the Company Corporation therefor, after without deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company Corporation in connection therewith. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Company Corporation shall be deemed to be the fair value of such consideration as determined in good faith by the Board of Directors of the CompanyCorporation, after without deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company Corporation in connection therewith. The amount of consideration deemed to be received by the Corporation pursuant to the foregoing provisions of this paragraph (e) upon any issuance and/or sale, pursuant to an established compensation plan of the Corporation, to directors, officers or employees of the Corporation in connection with their employment of shares of Common Stock, Options or Convertible Securities, shall be increased by the amount of any tax benefit realized by the Corporation as a result of such issuance and/or sale, the amount of such tax benefit being the amount by which the Federal and/or State income or other tax liability of the Corporation shall be reduced by reason of any deduction or credit in respect of such issuance and/or sale. In case any Options shall be issued in connection with the issue and sale of other securities of the CompanyCorporation, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued for such consideration as determined in good faith by the Board without consideration. In case any shares of Directors of the Company. If Common Stock, Options or Convertible Securities shall be issued or sold by the Company and, in connection therewithwith any merger or consolidation in which the Corporation is the surviving corporation, other Options or Convertible Securities (the “Additional Rights”) are issued, then the amount of consideration received or therefor shall be deemed to be received by the Company shall be reduced by the fair market value of the Additional Rights (as determined using the Black-Scholes option pricing model or another method mutually agreed to by the Company and the Investor). The Board of Directors of the Company shall respond promptly, in writing, to an inquiry by the Investors as to the fair market value of the Additional Rights. In the event that the Board of Directors of the Company Corporation of such portion of the assets and business of the Investors are unable non-surviving corporation as such Board shall determine to agree upon be attributable to such Common Stock, Options or Convertible Securities, as the case may be. In the event of any consolidation or merger of the Corporation in which the Corporation is not the surviving corporation or in the event of any sale of all or substantially all of the assets of the Corporation for stock or other securities of any corporation, the Corporation shall be deemed to have issued a number of shares of its Common Stock for stock or securities of the other corporation computed on the basis of the actual exchange ratio on which the transaction was predicated and for a consideration equal to the fair market value on the date of such transaction of such stock or securities of the Additional Rightsother corporation, and if any such calculation results in adjustment of the Warrant Exercise Price, the Company and determination of the Investors shall jointly select an appraisernumber of shares of Common Stock receivable under this Warrant immediately prior to such merger, who is experienced in such matters. The decision consolidation or sale, for purposes of such appraiser paragraph (j), shall be final and conclusive, and made after giving effect to such adjustment of the cost of such appraiser shall be borne evenly by the Company and the InvestorWarrant Exercise Price.

Consideration for Stock. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for cash (except as contemplated in Section 2.4 of the Purchase Agreement)cash, the consideration received therefor shall be deemed to be the net gross amount received by the Company therefor, after deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a 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 in good faith by the Board of Directors of the Company, after deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued for such consideration as determined in good faith by the Board of Directors of the Company. If Common Stock, Options or Convertible Securities shall be issued or sold by the Company and, in connection therewith, other Options or Convertible Securities (the “Additional Rights”) are issued, then together comprising one integral transaction in which no specific consideration is allocated to such Additional Rights, (x) such Additional Rights will be deemed to have been issued for consideration equal to the Black Scholes Consideration Value thereof and (y) the other securities issued or sold or deemed to have been issued or sold in such integrated transaction shall be deemed to have been issued for consideration equal to the difference of (I) the aggregate consideration received or deemed to be received receivable by the Company shall be reduced by minus (II) the fair market Black Scholes Consideration Value of each such Additional Rights. For the purpose of this subsection 3(e)(ii)(5) “Black Scholes Consideration Value” means the value of the applicable Additional Rights (as determined the case may be) as of the date of issuance thereof calculated using the BlackBlack Scholes Option Pricing Model obtained from the “OV” function on Bloomberg utilizing (i) an underlying price per share equal to the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the public announcement of the execution of definitive documents with respect to the issuance of such Additional Rights (as the case may be), (ii) a risk-Scholes option pricing model or another method mutually agreed free interest rate corresponding to by the Company U.S. Treasury rate for a period equal to the remaining term of such Additional Rights (as the case may be) as of the date of issuance of such Additional Rights (as the case may be), (iii) a zero cost of borrow and (iv) an expected volatility equal to the greater of 100% and the Investor100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the date of issuance of such Additional Rights (as the case may be). The Board of Directors of the Company shall respond promptly, in writing, to an inquiry by the Investors Holder as to the fair market value of the Additional Rights. In the event that the Board of Directors of the Company and the Investors Holder are unable to agree upon the fair market value of the Additional Rights, the Company and the Investors Holder shall jointly select an appraiser, appraiser who is experienced in such matters. The decision of such appraiser shall be final and conclusive, and the cost of such appraiser shall be borne evenly by the Company and the InvestorCompany.

Consideration for Stock. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for cash (except as contemplated in Section 2.4 of the Purchase Agreement)cash, the consideration received therefor shall be deemed to be the net amount received by the Company Borrower therefor, after deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company Borrower in connection therewith. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Company Borrower shall be deemed to be the fair value of such consideration as determined in good faith by the Board of Directors of the CompanyBorrower, after deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company Borrower in connection therewith. In case any Options shall be issued in connection with the issue and sale of other securities of the CompanyBorrower, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued for such consideration as determined in good faith by the Board of Directors of the CompanyBorrower. If Common Stock, Options or Convertible Securities shall be issued or sold by the Company Borrower and, in connection therewith, other Options or Convertible Securities (the “Additional Rights”"ADDITIONAL RIGHTS") are issued, then the consideration received or deemed to be received by the Company Borrower shall be reduced by the fair market value of the Additional Rights (as determined using the Black-Scholes option pricing model or another method mutually agreed to by the Company Borrower and the InvestorLender). The Board of Directors of the Company Borrower shall respond promptly, in writing, to an inquiry by the Investors Lenders as to the fair market value of the Additional Rights. In the event that the Board of Directors of the Company Borrower and the Investors Lenders are unable to agree upon the fair market value of the Additional Rights, the Company Borrower and the Investors Lenders shall jointly select an appraiser, who is experienced in such matters. The decision of such appraiser shall be final and conclusive, and the cost of such appraiser shall be borne evenly by the Company Borrower and the InvestorLender.

Consideration for Stock. In case at any time any shares ----------------------- of Common Stock, Options Stock or Convertible Securities or any rights or options to purchase any such Common Stock or Convertible Securities shall be issued or sold for cash (except as contemplated in Section 2.4 of the Purchase Agreement)cash, the consideration received therefor shall be deemed to be the net amount received by the Company therefor, after without deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case at any time any shares of Common Stock, Options Stock of any class or Convertible Securities or any rights or options to purchase any such shares of Common Stock or Convertible Securities shall be issued or sold for a 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, after without deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case at any Options time any shares of Common Stock of any class or Convertible Securities or any rights or options to purchase such shares of 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 may determine to be attributable to such shares of Common Stock, Convertible Securities, rights or options, as the case may be. In case at any time any rights or options to purchase any shares of Common Stock or Convertible Securities shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options rights or options by the parties thereto, such Options rights or options shall be deemed to have been issued for such an amount of consideration equal to the fair value thereof as determined reasonably and in good faith by the Board of Directors of the Company. If Common Stock, Options or Convertible Securities shall be issued or sold by the Company and, in connection therewith, other Options or Convertible Securities (the “Additional Rights”) are issued, then the consideration received or deemed to be received by the Company shall be reduced by the fair market value of the Additional Rights (as determined using the Black-Scholes option pricing model or another method mutually agreed to by the Company and the Investor). The Board of Directors of the Company shall respond promptly, in writing, to an inquiry by the Investors as to the fair market value of the Additional Rights. In the event that the Board of Directors of the Company and the Investors are unable to agree upon the fair market value of the Additional Rights, the Company and the Investors shall jointly select an appraiser, who is experienced in such matters. The decision of such appraiser shall be final and conclusive, and the cost of such appraiser shall be borne evenly by the Company and the Investor.

Consideration for Stock. In case any shares of ----------------------- Common Stock, Options or Convertible Securities shall be issued or sold for cash (except as contemplated in Section 2.4 of the Purchase Agreement)cash, the consideration received therefor shall be deemed to be the net amount received by the Company therefor, after deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a 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 in good faith by the Board of Directors of the Company, after deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued for such consideration as determined in good faith by the Board of Directors of the Company. If Common Stock, Options or Convertible Securities shall be issued or sold by the Company and, in connection therewith, other Options or Convertible Securities (the “Additional Rights”"ADDITIONAL RIGHTS") are issued, then the consideration received or deemed to be received by the Company shall be reduced by the fair market value of the Additional Rights (as determined using the Black-Scholes option pricing model or another method mutually agreed to by the Company and the InvestorLender). The Board of Directors of the Company shall respond promptly, in writing, to an inquiry by the Investors Lenders as to the fair market value of the Additional Rights. In the event that the Board of Directors of the Company and the Investors Lenders are unable to agree upon the fair market value of the Additional Rights, the Company and the Investors Lenders shall jointly select an appraiser, who is experienced in such matters. The decision of such appraiser shall be final and conclusive, and the cost of such appraiser shall be borne evenly by the Company and the InvestorLender.

Consideration for Stock. In case any shares of Common Stock, Options Stock or ----------------------- Convertible Securities or any rights or options to purchase any such Common Stock or Convertible Securities shall be issued or sold for cash (except as contemplated in Section 2.4 of the Purchase Agreement)cash, the consideration received therefor shall be deemed to be the net amount received by the Company therefor, after without deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any shares of Common Stock, Options Stock or Convertible Securities or any rights or options to purchase any such Common Stock or Convertible Securities shall be issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the fair market value of such consideration as determined determined, in good faith and in the exercise of reasonable business judgment, by the Board of Directors of the Company, after without deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any Options shares of Common Stock or Convertible Securities or any rights or options to purchase such shares of Common Stock or Convertible Securities shall be issued in connection with any merger or consolidation in which the issue and sale Company is the surviving corporation (other than any consolidation or merger in which the previously outstanding shares of Common Stock of the Company shall be changed into or exchanged for the stock or other securities of another corporation), the Company, together comprising one integral transaction in which no specific amount of consideration is allocated to such Options by the parties thereto, such Options therefor shall be deemed to have been issued for such consideration be the fair market value as determined determined, in good faith and in the exercise of reasonable business judgment, by the Board of Directors of the Company. If Company of such portion of the assets and business of the non-surviving corporation as such Board may determine to be attributable to such shares of Common Stock, Options Convertible Securities, rights or Convertible Securities shall be issued options, as the case may be. In the event of any consolidation or sold by merger of the Company and, in connection therewith, other Options which the Company is not the surviving corporation or Convertible Securities (in which the “Additional Rights”) are issued, then the consideration received or deemed to be received by previously outstanding shares of Common Stock of the Company shall be reduced by changed into or exchanged for the fair market value stock or other securities of another corporation or in the event of any sale of all or substantially all of the Additional Rights (as determined using the Black-Scholes option pricing model or another method mutually agreed to by the Company and the Investor). The Board of Directors assets of the Company for stock or other securities of any corporation, the Company shall respond promptly, in writing, be deemed to an inquiry by have issued a number of shares of its Common Stock for stock or securities or other property of the Investors as other corporation computed on the basis of the actual exchange ratio on which the transaction was predicated and for a consideration equal to the fair market value on the date of such transaction of all such stock or securities or other property of the Additional Rights. In the event that the Board of Directors other corporation, and if any such calculation results in adjustment of the Company and number of shares of Common Stock comprising a Stock Unit, the Investors are unable to agree upon the fair market value determination of the Additional Rightsadjusted Exercise Price, the Company and the Investors shall jointly select an appraiser, who is experienced in such matters. The decision for purposes of such appraiser Section 4.3 shall be final and conclusive, and the cost of made after giving effect to such appraiser shall be borne evenly by the Company and the Investoradjustment.

Consideration for Stock. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for cash (except as contemplated in Section 2.4 of the Purchase Agreement)cash, the consideration received therefor shall be deemed to be the net amount received by the Company therefor, after deduction without reduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a 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 in good faith by the Board of Directors of the Company, after without deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. The amount of consideration deemed to be received by the Company pursuant to the foregoing provisions of this paragraph (e) upon any issue or sale, pursuant to any established compensation plan of the Company to directors, officers or employees of the Company in connection with their employment, of shares of Common Stock, Options or Convertible Securities shall be increased by the amount of any tax benefit realized by the Company as a result of such issue or sale, the amount of such tax benefit being the amount by which the Federal and/or State income or other tax liability of the Company shall be reduced by reason of any deduction or credit in respect of such issue or sale. In case any Options shall be issued in connection with the issue and sale of or other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued for such without consideration. In case any shares of Common Stock, Options 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 therefore shall be deemed to be the fair value as determined determines in good faith by the Board of Directors of the Company. If Company of such portion of the assets and business of the non-surviving corporation as such Board shall determine to be attributable to such Common Stock, Options or Convertible Securities shall be issued Securities, as the case may be. In the event of any consolidation or sold by merger of the Company andin which the Company is not the surviving corporation or in the event of any sale of all or substantially all the assets of the Company for stock or other securities of any corporation, in connection therewith, other Options or Convertible Securities (the “Additional Rights”) are issued, then the consideration received or deemed to be received by the Company shall be reduced by the fair market value deemed to have issued a number of shares of its Common Stock for stock or securities of the Additional Rights (as determined using other corporation computed on the Black-Scholes option pricing model or another method mutually agreed to by the Company and the Investor). The Board of Directors basis of the Company shall respond promptly, in writing, to an inquiry by actual exchange ratio on which the Investors as transaction was predicated and for a consideration equal to the fair market value on the date of such transaction of such stock or securities of the Additional Rights. In the event that the Board of Directors other corporation, and, if any such calculation results in adjustment of the Company and Warrant Price, the Investors are unable to agree upon the fair market value determination of the Additional Rightsnumber of shares of Common Stock receivable under this Warrant immediately prior to such merger, the Company and the Investors shall jointly select an appraiserconsolidation or sale, who is experienced in such matters. The decision for purposes of such appraiser paragraph (j), shall be final and conclusive, and made after giving effect to such adjustment of the cost of such appraiser shall be borne evenly by the Company and the InvestorWarrant Price.

Consideration for Stock. In case If any shares of Common Stock, Options Stock or Convertible Securities or any rights or options to purchase any such Common Stock or Convertible Securities shall be issued or sold for cash (except as contemplated in Section 2.4 of the Purchase Agreement)cash, the consideration received therefor shall be deemed to be the net amount received by the Company therefor, after without deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case If any shares of Common Stock, Options Stock or Convertible Securities or any rights or options to purchase any such Common Stock or Convertible Securities shall be issued or sold for a 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 board of Directors directors of the Company, after without deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case If the Company shall declare or pay a dividend or make any Options shall be issued in connection with the issue and sale of other securities distribution upon any stock of the CompanyCompany payable in Common Stock, together comprising one integral transaction Convertible Securities or options, warrants or rights to purchase Common Stock or Convertible Securities, the securities issuable in which no specific consideration is allocated to payment of such Options by the parties thereto, such Options dividend or distribution shall be deemed to have been issued for such consideration as determined in good faith by the Board of Directors of the Companyor sold without consideration. If any shares of Common Stock, Options Stock or Convertible Securities or any rights or options to purchase such shares of Common Stock or Convertible Securities shall be issued in connection with any merger or sold by consolidation in which the Company and, is the surviving corporation (other than any consolidation or merger in connection therewith, other Options or Convertible Securities (which the “Additional Rights”) are issued, then the consideration received or deemed to be received by previously outstanding shares of Common Stock of the Company shall be reduced changed into or exchanged for the stock or other securities of another corporation), the amount of consideration therefor shall be deemed to be the fair value as determined reasonably and in good faith by the fair market value board of directors of the Additional Rights (Company or such portion of the assets and business of the non-surviving corporation as determined using such board may reasonably and in good faith determine to be attributable to such shares of Common Stock, Convertible Securities, rights or options, as the Black-Scholes option pricing model case may be. In the event of any consolidation or another method mutually agreed to by merger of the Company and in which the Investor). The Board Company is not the surviving corporation or in which the previously outstanding shares of Directors Common Stock of the Company shall respond promptlybe changed into or exchanged for the stock or other securities of another entity or in the event of any sale of all or substantially all of the assets of the Company for stock or other securities of any entity, in writing, the Company shall be deemed to an inquiry by have issued a number of shares of its Common Stock for stock or securities or other property of such entity computed on the Investors as basis of the actual exchange ratio on which the transaction was predicated and for a consideration equal to the fair market value on the date of such transaction of all such stock or securities or other property of such entity, and if any such calculation results in adjustment of the Additional Rights. In the event that the Board of Directors of the Company and the Investors are unable to agree upon the fair market value of the Additional Rights, the Company and the Investors shall jointly select an appraiser, who is experienced Exercise Price in such matters. The decision of such appraiser shall be final and conclusive, and the cost of such appraiser shall be borne evenly by the Company and the Investor.accordance with Section 8(b),

Consideration for Stock. In case any shares of Common Stock, Options Stock or Convertible Securities or any rights or options to purchase any such Common Stock or Convertible Securities shall be issued or sold for cash (except as contemplated in Section 2.4 of the Purchase Agreement)cash, the consideration received therefor shall be deemed to be the net amount received by the Company Corporation therefor, after deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company Corporation in connection therewith. In case any shares of Common Stock, Options Stock or Convertible Securities or any rights or options to purchase any such Common Stock or Convertible Securities shall be issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Company Corporation shall be deemed to be the fair value of such consideration as determined in good faith by the Board of Directors of the CompanyCorporation, after deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company Corporation in connection therewith. In case any Options shares of Common Stock or Convertible Securities or any rights or options to purchase such Common Stock or Convertible Securities shall be issued in connection with any merger in which the Corporation is the surviving corporation, the amount of consideration therefor shall be deemed to be the fair value as determined in good faith by the Board of Directors of the Corporation of such portion of the assets and business of the nonsurviving corporation as such Board shall determine to be attributable to such Common Stock, Convertible Securities, rights or options, as the case may be. In case any rights or options to purchase any shares of Common Stock or Convertible Securities shall be issued in connection with the issue and sale of other securities of the CompanyCorporation, together comprising one integral transaction in which no specific consideration is allocated to such Options rights or options by the parties thereto, such Options rights or options shall be deemed to have been issued for such consideration as determined in good faith by without consideration. In the Board event of Directors any consolidation or merger of the Company. If Common StockCorporation in which the Corporation is not the surviving corporation or in the event of any sale of all or substantially all of the assets of the Corporation for stock or other securities of any corporations, Options or Convertible Securities the Corporation shall be issued or sold by the Company and, in connection therewith, other Options or Convertible Securities (the “Additional Rights”) are issued, then the consideration received or deemed to be received by the Company shall be reduced by the fair market value have issued a number of shares of its Common Stock for stock or securities of the Additional Rights (as determined using other corporation computed on the Black-Scholes option pricing model or another method mutually agreed to by the Company and the Investor). The Board of Directors basis of the Company shall respond promptly, in writing, to an inquiry by actual exchange ratio on which the Investors as transaction was predicated and for a consideration equal to the fair market value on the date of such transaction of such stock or securities of the Additional Rights. In the event that the Board of Directors other corporation, and if any such calculation results in adjustment of the Company and Adjustment Price, the Investors are unable to agree upon the fair market value determination of the Additional Rightsnumber of shares of Common Stock receivable upon exercise of this Warrant immediately prior to such merger, the Company and the Investors shall jointly select an appraiserconsolidation or sale, who is experienced in such matters. The decision for purposes of such appraiser paragraph 2E, shall be final and conclusive, and made after giving effect to such adjustment of the cost of such appraiser shall be borne evenly by the Company and the InvestorAdjustment Price.

Consideration for Stock. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for cash (except as contemplated in Section 2.4 of the Purchase Agreement)cash, the consideration received therefor shall be deemed to be the net amount received by the Company Corporation therefor, after without deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company Corporation in connection therewith. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Company Corporation shall be deemed to be the fair value of such consideration as determined in good faith by the Board of Directors of the CompanyCorporation, after without deduction of any expenses incurred or any underwriting under writing commissions or concessions paid or allowed by the Company Corporation in connection therewith. The amount of consideration deemed to be received by the Corporation pursuant to the foregoing provisions of this paragraph (e) upon any issuance and/or sale, pursuant to an established compensation plan of the Corporation, to directors, officers or employees of the Corporation in connection with their employment of shares of Common Stock, Options or Convertible Securities, shall be increased by the amount of any tax benefit realized by the Corporation as a result of such issuance and/or sale, the amount of such tax benefit being the amount by which the Federal and/or State income or other tax liability of the Corporation shall be reduced by reason of any deduction or credit in respect of such issuance and/or sale. In case any Options shall be issued in connection with the issue and sale of other securities of the CompanyCorporation, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued for such consideration as determined in good faith by the Board without consideration. In case any shares of Directors of the Company. If Common Stock, Options or Convertible Securities shall be issued or sold by the Company and, in connection therewithwith any merger or consolidation in which the Corporation is the surviving corporation, other Options or Convertible Securities (the “Additional Rights”) are issued, then the amount of consideration received or therefor shall be deemed to be received by the Company shall be reduced by the fair market value of the Additional Rights (as determined using the Black-Scholes option pricing model or another method mutually agreed to by the Company and the Investor). The Board of Directors of the Company shall respond promptly, in writing, to an inquiry by the Investors as to the fair market value of the Additional Rights. In the event that the Board of Directors of the Company Corporation of such portion of the assets and business of the Investors are unable non-surviving corporation as such Board shall determine to agree upon be attributable to such Common Stock, Options or Convertible Securities, as the case may be. In the event of any consolidation or merger of the Corporation in which the Corporation is not the surviving corporation or in the event of any sale of all or substantially all of the assets of the Corporation for stock or other securities of any corporation, the Corporation shall be deemed to have issued a number of shares of its Common Stock for stock or securities of the other corporation computed on the basis of the actual exchange ratio on which the transaction was predicated and for a consideration equal to the fair market value on the date of such transaction of such stock or securities of the Additional Rightsother corporation, and if any such calculation results in adjustment of the Warrant Exercise Price, the Company and determination of the Investors shall jointly select an appraisernumber of shares of Common Stock receivable under this Warrant immediately prior to such merger, who is experienced in such matters. The decision consolidation or sale, for purposes of such appraiser paragraph (j), shall be final and conclusive, and made after giving effect to such adjustment of the cost of such appraiser shall be borne evenly by the Company and the InvestorWarrant Exercise Price.

Consideration for Stock. In case any shares of Common Stock, Options ----------------------- or Convertible Securities shall be issued or sold for cash (except as contemplated in Section 2.4 of cash, or offered by the Purchase Agreement)Company for subscription, the consideration received therefor shall be deemed to be the net amount received by the Company therefortherefor plus any additional consideration payable to the Company upon the exercise, conversion or exchange of such Common Stock, Options or Convertible Securities, excluding any amounts paid or receivable for accrued interest or accrued dividends and after deduction deducting therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a 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 in good faith by the Board of Directors of the Company, after deduction of deducting any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. The amount of consideration deemed to be received by the Company pursuant to the foregoing provisions of this paragraph 3D(5) upon any issuance and/or sale, pursuant to an established compensation plan of the Company, to directors, officers or employees of the Company in connection with their employment, of shares of Common Stock, Options or Convertible Securities, shall be increased by the amount of any tax benefit realized by the Company as a result of such issuance and/or sale, the amount of such tax benefit being the amount by which the Federal and/or State income or other tax liability of the Company shall be reduced by reason of any deduction or credit in respect of such issuance and/or sale. In case any shares of Common Stock, Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the fair value as determined by the Board of Directors of the Company of such portion of the assets and business of the non-surviving corporation as such Board shall determine to be attributable to such Common Stock, Options or Convertible Securities as the case may be. In case any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration. In the event of any consolidation or merger of the Company in which the Company is not the surviving corporation or in the event of any sale of all or substantially all of the assets of the Company for stock or other securities of any corporation, the Company shall be deemed to have issued a number of shares of its Common Stock for stock or securities of the other corporation computed on the basis of the actual exchange ratio on which the transaction was predicated and for a consideration equal to the fair market value on the date of such transaction of such stock or securities of the other corporation, and if any such calculation results in adjustment of the Warrant Purchase Price, the determination of the number of shares of Common Stock receivable upon exercise of the Warrants immediately prior to such merger, consolidation or sale, for purposes of this paragraph 3D, shall be made after giving effect to such adjustment of the Warrant Purchase Price. In all cases where the amount of consideration as received by the Company upon the issuance or sale of any Common Stock, Options, or Convertible Securities is to be determined in good faith by the Board of Directors of the Company. If Common Stock, Options or Convertible Securities the Board shall be issued or sold by notify the Company and, in connection therewith, other Options or Convertible Securities (the “Additional Rights”) are issued, then holder of this Warrant of its determination of the consideration received prior to payment or deemed accepting receipt thereof. If, within ten days after receipt of said notice, the holder of this Warrant shall notify the Board of any objection to be received by the Company shall be reduced by such determination of consideration, a determination of the fair market value of the Additional Rights (as determined using consideration will then be made by arbitration in accordance with the Black-Scholes option pricing model or another method mutually agreed to by the Company and the Investor). The Board of Directors Rules of the Company shall respond promptlyAmerican Arbitration Association, by an arbitrator in writingthe City of San Francisco, to an inquiry by the Investors as to the fair market value of the Additional Rights. In the event that the Board of Directors of the Company and the Investors are unable to agree upon the fair market value of the Additional Rights, the Company and the Investors shall jointly select an appraiser, who is experienced in such matters. The decision of such appraiser shall be final and conclusive, and the cost of such appraiser shall be borne evenly by the Company and the InvestorCalifornia.

Consideration for Stock. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for cash (except as contemplated in Section 2.4 of the Purchase Agreement)cash, the consideration received therefor shall be deemed to be the net amount received by the Company therefor, after deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a 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 in good faith by the Board of Directors of the Company, after deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued for such consideration as determined in good faith by the Board of Directors of the Company. If In situations other than those covered by the immediately preceding sentence, if Common Stock, Options or Convertible Securities shall be issued or sold by the Company and, in connection therewith, other Options or Convertible Securities (the “"Additional Rights”") are issued, then the consideration received or deemed to be received by the Company shall be reduced by the fair market value of the Additional Rights (as determined using the Black-Scholes option pricing model or another method mutually agreed to by the Company and the InvestorWarrantholder). The Board of Directors of the Company shall respond promptly, in writing, to an inquiry by the Investors Warrantholder as to the fair market value of the Additional Rights. In the event that the Board of Directors of the Company and the Investors Warrantholder are unable to agree upon the fair market value of the Additional Rights, the Company and the Investors Warrantholder shall jointly select an appraiser, who is experienced in such matters. The decision of such appraiser shall be final and conclusive, and the cost of such appraiser shall be borne evenly by the Company and the InvestorWarrantholder.

Consideration for Stock. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for cash (except as contemplated in Section 2.4 of the Purchase Agreement)cash, the consideration received therefor shall be deemed to be the net amount received by the Company therefor, after without deduction therefrom of any expenses incurred or any reasonable underwriting commissions or concessions paid or allowed by the Company (or deducted from amounts received by the Company) in connection therewith. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a 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, after without deduction of any expenses incurred or any reasonable underwriting commissions or concessions paid or allowed by the Company (or deducted from amounts received by the Company) in connection therewith. The amount of consideration deemed to be received by the Company pursuant to issuance and/or sale, pursuant to an established compensation plan of the Company, to directors, officers or employees of the Company or any subsidiary of the Company in connection with their employment of shares of Common stock, Options or Convertible Securities, shall be increased by the amount of any tax benefit realized by the Company as a result of such issuance and/or sale, the amount of such tax benefit being the amount by which the federal and/or state income or other tax liability of the Company shall be reduced by reason of any deduction or credit in respect of such issuance and/or sale. In case any Common Stock, Options or Convertible Securities shall be issued in connection with any merger or consolidation in which the issue and sale Company is the surviving corporation (other than any consolidation or merger in which the previously outstanding shares of Common Stock of the Company shall be changed into or exchanged for the stock or other securities of another corporation), the Company, together comprising one integral transaction in which no specific amount of consideration is allocated to such Options by the parties thereto, such Options received therefor shall be deemed to have been issued for such consideration be the fair value as determined reasonably and in good faith by the Board of Directors of the Company. If Company of such portion of the assets and business of the non-surviving corporation as such Board may determined to be attributable to such shares of Common Stock, Options or Convertible Securities shall be issued Securities, as the case may be. In the event of any consolidation or sold by merger of the Company and, in connection therewith, other Options which the Company is not the surviving corporation or Convertible Securities (in which the “Additional Rights”) are issued, then the consideration received or deemed to be received by previously outstanding shares of Common Stock of the Company shall be reduced by changed into or exchanged for the fair market value stock or other securities of another corporation, or in the event of any sale of all or substantially all of the Additional Rights (as determined using the Black-Scholes option pricing model or another method mutually agreed to by the Company and the Investor). The Board of Directors assets of the Company for stock or other securities of any corporation, the Company shall respond promptly, in writing, be deemed to an inquiry by have issued a number of shares of its Common Stock computed on the Investors as basis of the actual exchange ratio on which the transaction was predicated and for a consideration equal to the fair market value on the date of such transaction of all such stock or securities of the Additional Rightsother corporation, and if such calculation results in adjustment of the Warrant Purchase Price, the determination of the number of shares of Common Stock issuable upon exercise of the Warrants immediately prior to such merger, consolidation or sale, for purposes of paragraph 3.13 below, shall be made after giving effect to such adjustment of the Warrant Purchase Price. In case any shares of Common Stock shall be issued (or issuable) pursuant to any Options for the event that the Board of Directors purchase of the Company and the Investors are unable to agree upon the fair market value of the Additional Rightssame, the Company and the Investors shall jointly select an appraiser, who is experienced in such matters. The decision of such appraiser consideration deemed to be received (or receivable) therefor shall be final and conclusivedeemed to be the total amount, and the cost of such appraiser shall be borne evenly if any, received (or total minimum amount receivable) by the Company and as consideration for the Investorgranting of such Options, plus the aggregate amount of additional consideration paid (or minimum amount payable) to the Company upon the exercise of such Options. In case any shares of Common Stock shall be issued (or issuable) upon the conversion or exchange of any Convertible Securities, the consideration deemed to be received (or receivable) therefor shall be deemed to be the total amount received (or total minimum amount receivable) by the Company as consideration for the granting of any Options to subscribe to or purchase such Convertible Securities, plus the total amount of additional consideration paid (or minimum amount payable) to the Company as consideration for the issue or sale of such Convertible Securities, plus the total amount of additional consideration, if any, paid (or minimum amount payable) to the Company upon the conversion or exchange thereof.

Consideration for Stock. In case at any time any shares of Common Stock, Options Stock or Convertible Securities or any rights or options to purchase any such Common Stock or Convertible Securities shall be issued or sold for cash (except as contemplated in Section 2.4 of the Purchase Agreement)cash, the consideration received therefor shall be deemed to be the net amount received by CJI therefor in the Company thereforform of such cash, after without deduction therefrom of any expenses paid or incurred or any underwriting commissions commissions, concessions or concessions discounts paid or allowed by the Company CJI in connection therewith. In case at any time any shares of Common Stock, Options Stock or Convertible Securities or any rights or options to purchase any such shares of Common Stock or Convertible Securities shall be issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Company CJI shall be deemed to be the fair value of such consideration at the time of such issue or sale as determined reasonably and in good faith by the Board of Directors of the CompanyCJI, after without deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company CJI in connection therewith. In case at any Options time any shares of Common Stock or Convertible Securities or any rights or options to purchase such shares of Common Stock or Convertible Securities shall be issued in connection with any merger or consolidation in which CJI is the surviving corporation (other than a transaction to which Section 1.7 hereof shall be applicable), 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 CJI, of such portion of the assets and business of the non-surviving entity as such Board may determine to be attributable to such shares of Common Stock, Convertible Securities, rights or options, as the case may be. In case at any time any rights or options to purchase any shares of Common Stock or Convertible Securities shall be issued in connection with the issue and sale of other securities of the CompanyCJI, together comprising one integral transaction in which no specific consideration is allocated to such Options rights or options by the parties thereto, such Options rights or options shall be deemed to have been issued for such an amount of consideration equal to the fair value thereof as determined reasonably and in good faith by the Board of Directors of the Company. If Common Stock, Options or Convertible Securities shall be issued or sold by the Company and, in connection therewith, other Options or Convertible Securities (the “Additional Rights”) are issued, then the consideration received or deemed to be received by the Company shall be reduced by the fair market value of the Additional Rights (as determined using the Black-Scholes option pricing model or another method mutually agreed to by the Company and the Investor). The Board of Directors of the Company shall respond promptly, in writing, to an inquiry by the Investors as to the fair market value of the Additional Rights. In the event that the Board of Directors of the Company and the Investors are unable to agree upon the fair market value of the Additional Rights, the Company and the Investors shall jointly select an appraiser, who is experienced in such matters. The decision of such appraiser shall be final and conclusive, and the cost of such appraiser shall be borne evenly by the Company and the InvestorCJI.

Consideration for Stock. In case any shares of Common Stock, Options Stock or Convertible Securities or any rights or options to purchase any such Common Stock or Convertible Securities shall be issued or sold for cash (except as contemplated in Section 2.4 of the Purchase Agreement)cash, the consideration received therefor shall be deemed to be the net amount received by the Company therefor, after without deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any shares of Common Stock, Options Stock or Convertible Securities or any rights or options to purchase any such Common Stock or Convertible Securities shall be issued or sold for a 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 board of Directors directors of the Company, after without deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any Options shares of Common Stock or Convertible Securities or any rights or options to purchase such shares of Common Stock or Convertible Securities shall be issued in connection with any merger or consolidation in which the issue and sale Company is the surviving corporation (other than any consolidation or merger in which the previously outstanding shares of Common Stock of the Company shall be changed into or exchanged for the stock or other securities of another corporation), the Companyamount of consideration therefor shall be deemed to be the fair value as determined reasonably and in good faith by the board of directors of the Company or such portion of the assets and business of the non-surviving corporation as such board may reasonably and in good faith determine to be attributable to such shares of Common Stock, together comprising one integral transaction Convertible Securities, rights or options, as the case may be. In the event of any consolidation or merger of the Company in which no specific consideration the Company is allocated to such Options by not the parties theretosurviving corporation or in which the previously outstanding shares of Common Stock of the Company shall be changed into or exchanged for the stock or other securities of another entity or in the event of any sale of all or substantially all of the assets of the Company for stock or other securities of any entity, such Options the Company shall be deemed to have been issued a number of shares of its Common Stock for stock or securities or other property of such consideration as determined in good faith by entity computed on the Board of Directors basis of the Company. If Common Stock, Options or Convertible Securities shall be issued or sold by actual exchange ratio on which the Company and, in connection therewith, other Options or Convertible Securities (the “Additional Rights”) are issued, then the transaction was predicated and for a consideration received or deemed to be received by the Company shall be reduced by the fair market value of the Additional Rights (as determined using the Black-Scholes option pricing model or another method mutually agreed to by the Company and the Investor). The Board of Directors of the Company shall respond promptly, in writing, to an inquiry by the Investors as equal to the fair market value on the date of such transaction of all such stock or securities or other property of such entity, and if any such calculation results in adjustment of the Additional Rights. In Exercise Price in accordance with SECTION 6(b), the event that the Board of Directors determination of the Company and the Investors are unable to agree number of shares of Common Stock issuable upon the fair market value exercise of the Additional RightsWarrants immediately prior to such merger, the Company and the Investors shall jointly select an appraiserconsolidation or sale, who is experienced in such matters. The decision for purposes of such appraiser SECTION 6(f), shall be final and conclusive, and made after giving effect to such adjustment of the cost of such appraiser shall be borne evenly by the Company and the InvestorExercise Price.

Consideration for Stock. In case ----------------------- any shares of Common Stock, Options or Convertible Securities shall be issued or sold for cash (except as contemplated in Section 2.4 of the Purchase Agreement)cash, the consideration received therefor shall be deemed to be the net amount received by the Company therefor, after deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a 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 in good faith by the Board of Directors of the Company, after deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued for such consideration as determined in good faith by the Board of Directors of the Company. If Common Stock, Options or Convertible Securities shall be issued or sold by the Company and, in connection therewith, other Options or Convertible Securities (the “Additional Rights”"ADDITIONAL RIGHTS") are issued, then the consideration received or deemed to be received by the Company shall be reduced by the fair market value of the Additional Rights (as determined using the Black-Scholes option pricing model or another method mutually agreed to by the Company and the InvestorHolder). The Board of Directors of the Company shall respond promptly, in writing, to an inquiry by the Investors Holders as to the fair market value of the Additional Rights. In the event that the Board of Directors of the Company and the Investors Holders are unable to agree upon the fair market value of the Additional Rights, the Company and the Investors Holders shall jointly select an appraiser, who is experienced in such matters. The decision of such appraiser shall be final and conclusive, and the cost of such appraiser shall be borne evenly by the Company and the InvestorHolder.

Consideration for Stock. In case any shares of Common Stock, ----------------------- Options or Convertible Securities shall be issued or sold for cash (except as contemplated in Section 2.4 of cash, or offered by the Purchase Agreement)Company for subscription, the consideration received therefor shall be deemed to be the net amount received by the Company therefortherefor plus any additional consideration payable to the Company upon the exercise, conversion or exchange of such Common Stock, Options or Convertible Securities, excluding any amounts paid or receivable for accrued interest or accrued dividends and after deduction deducting therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a 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 in good faith by the Board of Directors of the Company, after deduction of deducting any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. The amount of consideration deemed to be received by the Company pursuant to the foregoing provisions of this paragraph 3D(5) upon any issuance and/or sale, pursuant to an established compensation plan of the Company, to directors, officers or employees of the Company in connection with their employment, of shares of Common Stock, Options or Convertible Securities, shall be increased by the amount of any tax benefit realized by the Company as a result of such issuance and/or sale, the amount of such tax benefit being the amount by which the Federal and/or State income or other tax liability of the Company shall be reduced by reason of any deduction or credit in respect of such issuance and/or sale. In case any shares of Common Stock, Options or Convertible Securities shall be issued in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the fair value as determined by the Board of Directors of the Company of such portion of the assets and business of the non-surviving corporation as such Board shall determine to be attributable to such Common Stock, Options or Convertible Securities as the case may be. In case any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration. In the event of any consolidation or merger of the Company in which the Company is not the surviving corporation or in the event of any sale of all or substantially all of the assets of the Company for stock or other securities of any corporation, the Company shall be deemed to have issued a number of shares of its Common Stock for stock or securities of the other corporation computed on the basis of the actual exchange ratio on which the transaction was predicated and for a consideration equal to the fair market value on the date of such transaction of such stock or securities of the other corporation, and if any such calculation results in adjustment of the Warrant Purchase Price, the determination of the number of shares of Common Stock receivable upon exercise of the Warrants immediately prior to such merger, consolidation or sale, for purposes of paragraph 3D, shall be made after giving effect to such adjustment of the Warrant Purchase Price. In all cases where the amount of consideration as received by the Company upon the issuance or sale of any Common Stock, Options, or Convertible Securities is to be determined in good faith by the Board of Directors of the Company. If Common Stock, Options or Convertible Securities the Board shall be issued or sold by notify the Company and, in connection therewith, other Options or Convertible Securities (the “Additional Rights”) are issued, then holder of this Warrant of its determination of the consideration received prior to payment or deemed accepting receipt thereof. If, within ten days after receipt of said notice, the holder of this Warrant shall notify the Board of any objection to be received by the Company shall be reduced by such determination of consideration, a determination of the fair market value of the Additional Rights (as determined using consideration will then be made by arbitration in accordance with the Black-Scholes option pricing model or another method mutually agreed to by the Company and the Investor). The Board of Directors Rules of the Company shall respond promptlyAmerican Arbitration Association, by an arbitrator in writingthe City of San Francisco, to an inquiry by the Investors as to the fair market value of the Additional Rights. In the event that the Board of Directors of the Company and the Investors are unable to agree upon the fair market value of the Additional Rights, the Company and the Investors shall jointly select an appraiser, who is experienced in such matters. The decision of such appraiser shall be final and conclusive, and the cost of such appraiser shall be borne evenly by the Company and the InvestorCalifornia.

Consideration for Stock. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for cash (except as contemplated in Section 2.4 of the Purchase Agreement)cash, the consideration received therefor shall be deemed to be the net amount received by the Company Corporation therefor, after without deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company Corporation in connection therewith. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Company Corporation shall be deemed to be the fair value of such consideration as determined in good faith by the Board of Directors of the CompanyCorporation, after without deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company Corporation in connection therewith. The amount of consideration deemed to be received by the Corporation pursuant to the foregoing provisions of this paragraph (e) upon any issuance and/or sale, pursuant to an established compensation plan of the Corporation, to directors, officers or employees of the Corporation in connection with their employment of shares of Common Stock, Options or Convertible Securities, shall be increased by the amount of any tax benefit realized by the Corporation as a result of such issuance and/or sale, the amount of such tax benefit being the amount by which the Federal and/or State income or other tax liability of the Corporation shall be reduced by reason of any deduction or credit in respect of such issuance and/or sale. In case any Options shall be issued in connection with the issue and sale of other securities of the CompanyCorporation, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued for such consideration as determined in good faith by the Board without consideration. In case any shares of Directors of the Company. If Common Stock, Options or Convertible Securities shall be issued or sold by the Company and, in connection therewithwith any merger or consolidation in which the Corporation is the surviving corporation, other Options or Convertible Securities (the “Additional Rights”) are issued, then the amount of consideration received or therefor shall be deemed to be received by the Company shall be reduced by the fair market value of the Additional Rights (as determined using the Black-Scholes option pricing model or another method mutually agreed to by the Company and the Investor). The Board of Directors of the Company shall respond promptly, in writing, to an inquiry by the Investors as to the fair market value of the Additional Rights. In the event that the Board of Directors of the Company Corporation of such portion of the assets and business of the Investors are unable non-surviving corporation as such Board shall determine to agree upon be attributable to such Common Stock, Options or Convertible Securities, as the case may be. In the event of any consolidation or merger of the Corporation in which the Corporation is not the surviving corporation or in the event of any sale of all or substantially all of the assets of the Corporation for stock or other securities of any corporation, the Corporation shall be deemed to have issued a number of shares of its Common Stock for stock or securities of the other corporation computed on the basis of the actual exchange ratio on which the transaction was predicated and for a consideration equal to the fair market value on the date of such transaction of such stock or securities of the Additional Rightsother corporation, and if any such calculation results in adjustment of the Warrant Exercise Price, the Company and determination of the Investors shall jointly select an appraiser, who is experienced in such matters. The decision number of such appraiser shall be final and conclusive, and the cost shares of such appraiser shall be borne evenly by the Company and the Investor.Common Stock receivable under this Warrant immediately prior to such

Consideration for Stock. In case any shares of Common StockShares, Options or Convertible Securities shall be issued or sold for cash (except as contemplated in Section 2.4 of the Purchase Agreement)cash, the consideration received therefor shall be deemed to be the net amount received by the Company WorldHeart therefor, after deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company WorldHeart in connection therewith. In case any shares of Common StockShares, Options or Convertible Securities shall be issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Company WorldHeart shall be deemed to be the fair value of such consideration as determined in good faith by the Board directors of Directors of the CompanyWorldHeart, after deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company WorldHeart in connection therewith. In case any Options shall be issued in connection with the issue and sale of other securities of the CompanyWorldHeart, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued for such consideration as determined in good faith by the Board directors of Directors of the CompanyWorldHeart. If Common StockShares, Options or Convertible Securities shall be issued or sold by the Company WorldHeart and, in connection therewith, other Options or Convertible Securities (the “"Additional Rights”") are issued, then the consideration received or deemed to be received by the Company WorldHeart shall be reduced by the fair market value of the Additional Rights (as determined using the Black-Scholes option pricing model or another method mutually agreed to by the Company WorldHeart and the InvestorWarrantholder). The Board directors of Directors of the Company WorldHeart shall respond promptly, in writing, to an inquiry by the Investors Warrantholder as to the fair market value of the Additional Rights. In the event that the Board directors of Directors of the Company WorldHeart and the Investors Warrantholder are unable to agree upon the fair market value of the Additional Rights, the Company WorldHeart and the Investors Warrantholder shall jointly select an appraiser, who is experienced in such matters. The decision of such appraiser shall be final and conclusive, and the cost of such appraiser shall be borne evenly by the Company WorldHeart and the InvestorWarrantholder.

Consideration for Stock. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for cash (except as contemplated in Section 2.4 of the Purchase Agreement)cash, the consideration received therefor shall be deemed to be the net gross amount received by the Company therefor, after deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a 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 in good faith by the Board of Directors of the Company, after deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued for such consideration as determined in good faith by the Board of Directors of the Company. If Common Stock, Options or Convertible Securities shall be issued or sold by the Company and, in connection therewith, other Options or Convertible Securities (the “"Additional Rights”") are issued, then the consideration received or deemed to be received by the Company shall be reduced by the fair market value of the Additional Rights (as determined using the Black-Scholes option pricing model or another method mutually agreed to by the Company and the InvestorHolder). The Board of Directors of the Company shall respond promptly, in writing, to an inquiry by the Investors Holders as to the fair market value of the Additional Rights. In the event that the Board of Directors of the Company and the Investors Required Holders are unable to agree upon the fair market value of the Additional Rights, the Company and the Investors Required Holders shall jointly select an appraiser, who is experienced in such matters. The decision of such appraiser shall be final and conclusive, and the cost of such appraiser shall be borne evenly by the Company and the InvestorHolders. The term "Required Holders" shall mean holders of a majority in interest of the Warrant Shares to be issued under this Warrant and all other warrants issued under the Purchase Agreement.

Consideration for Stock. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for cash (except as contemplated in Section 2.4 of the Purchase Agreement)cash, the consideration received therefor shall be deemed to be the net amount received by the Company Corporation therefor, after without deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company Corporation in connection therewith. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Company Corporation shall be deemed to be the fair value of such consideration as determined in good faith by the Board of Directors of the CompanyCorporation, after without deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company Corporation in connection therewith. The amount of consideration deemed to be received by the Corporation pursuant to the foregoing provisions of this subsection 6(d)(5) upon any issuance and/or sale of shares of Common Stock, Options or Convertible Securities, pursuant to an established compensation plan of the Corporation, to directors, officers or employees of the Corporation in connection with their employment shall be increased by the amount of any tax benefit realized by the Corporation as a result of such issuance and/or sale, the amount of such tax benefit being the amount by which the federal and/or state income or other tax liability of the Corporation shall be reduced by reason of any deduction or credit in respect of such issuance and/or sale in the fiscal year of such issuance and/or sale. In case any Options shall be issued in connection with the issue and sale of other securities of the CompanyCorporation, together comprising one integral transaction in which no specific consideration 564314.5 is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued for such consideration as determined in good faith by the Board of Directors of the Company. If Common Stock, Options or Convertible Securities shall be issued or sold by the Company and, in connection therewith, other Options or Convertible Securities (the “Additional Rights”) are issued, then the consideration received or deemed to be received by the Company shall be reduced by the fair market value of the Additional Rights (as determined using the Black-Scholes option pricing model or another method mutually agreed to by the Company and the Investor). The Board of Directors of the Company shall respond promptly, in writing, to an inquiry by the Investors as to the fair market value of the Additional Rights. In the event that the Board of Directors of the Company and the Investors are unable to agree upon the fair market value of the Additional Rights, the Company and the Investors shall jointly select an appraiser, who is experienced in such matters. The decision of such appraiser shall be final and conclusive, and the cost of such appraiser shall be borne evenly by the Company and the Investorwithout consideration.

Consideration for Stock. In case If any Option or Convertible Security is issued in connection with the issuance or sale or deemed issuance or sale of any other securities of the Company, together comprising one integrated transaction, (x) such Option or Convertible Security (as applicable) will be deemed to have been issued for consideration equal to the Option Value (as defined below) thereof and (y) the other securities issued or sold or deemed to have been issued or sold in such integrated transaction shall be deemed to have been issued for consideration equal to the difference of (I) the aggregate consideration received or receivable by the Company minus (II) the Option Value of each such Option or Convertible Security (as applicable). If any shares of Common Stock, Options or Convertible Securities shall be are issued or sold or deemed to have been issued or sold for cash (except as contemplated in Section 2.4 of the Purchase Agreement)cash, the consideration received therefor shall will be deemed to be the net amount of consideration received by the Company therefor, after deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case If any shares of Common Stock, Options or Convertible Securities shall be are issued or sold for a consideration other than cash, for purposes of calculating the consideration paid for the Options or Convertible Securities (but not the Option Value thereof), the amount of the such consideration other than cash received by the Company shall will be the fair value of such consideration, except where such consideration consists of publicly traded securities, in which case the amount of consideration received by the Company for such securities will be the arithmetic average of the volume weighted average prices of such security for each of the five (5) Trading Days immediately preceding the date of receipt. If any shares of Common Stock, Options or Convertible Securities are issued to the owners of the non-surviving entity in connection with any merger in which the Company is the surviving entity, the amount of consideration therefor will be deemed to be the fair value of such consideration as determined in good faith by the Board of Directors portion of the Companynet assets and business of the non-surviving entity as is attributable to such shares of Common Stock, after deduction Options or Convertible Securities, as the case may be. The fair value of any expenses incurred consideration other than cash or any underwriting commissions or concessions paid or allowed by publicly traded securities (but not the Company in connection therewith. In case any Options shall Option Value thereof) will be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued for such consideration as determined in good faith by the Board of Directors of the Company. If Common StockFor purposes hereof, Options or Convertible Securities shall be issued or sold by “Option Value” means the Company and, in connection therewith, other Options or Convertible Securities (the “Additional Rights”) are issued, then the consideration received or deemed to be received by the Company shall be reduced by the fair market value of the Additional Rights applicable Option or Convertible Security (as determined the case may be) as of the date of issuance thereof calculated using the Black-Black Scholes option pricing model or another method mutually agreed Option Pricing Model obtained from the “OV” function on Bloomberg utilizing (i) an underlying price per share equal to by the Company and the Investor). The Board of Directors Closing Sale Price of the Company shall respond promptly, in writing, to an inquiry by Common Stock on the Investors as Trading Day immediately preceding the public announcement of the execution of definitive documents with respect to the fair market value issuance of such Option or Convertible Security (as the case may be), (ii) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of such Option or Convertible Security (as the case may be) as of the Additional Rights. In the event that the Board date of Directors of the Company and the Investors are unable to agree upon the fair market value of the Additional Rights, the Company and the Investors shall jointly select an appraiser, who is experienced in such matters. The decision issuance of such appraiser shall be final Option or Convertible Security (as the case may be) and conclusive, and the cost of such appraiser shall be borne evenly by the Company and the Investor(iii) an expected volatility equal to 40%.

Consideration for Stock. In case If any shares of Common Stock, Options Stock or Convertible Securities or any rights or options to purchase any such Common Stock or Convertible Securities shall be issued or sold for cash (except as contemplated in Section 2.4 of the Purchase Agreement)cash, the consideration received therefor shall be deemed to be the net amount received by the Company therefor, after without deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case If any shares of Common Stock, Options Stock or Convertible Securities or any rights or options to purchase any such Common Stock or Convertible Securities shall be issued or sold for a 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 board of Directors directors of the Company, after without deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case If the Company shall declare or pay a dividend or make any Options shall be issued in connection with the issue and sale of other securities distribution upon any stock of the CompanyCompany payable in Common Stock, together comprising one integral transaction Convertible Securities or options, warrants or rights to purchase Common Stock or Convertible Securities, the securities issuable in which no specific consideration is allocated to payment of such Options by the parties thereto, such Options dividend or distribution shall be deemed to have been issued for such consideration as determined in good faith by the Board of Directors of the Companyor sold without consideration. If any shares of Common Stock, Options Stock or Convertible Securities or any rights or options to purchase such shares of Common Stock or Convertible Securities shall be issued in connection with any merger or sold by consolidation in which the Company and, is the surviving corporation (other than any consolidation or merger in connection therewith, other Options or Convertible Securities (which the “Additional Rights”) are issued, then the consideration received or deemed to be received by previously outstanding shares of Common Stock of the Company shall be reduced changed into or exchanged for the stock or other securities of another corporation), the amount of consideration therefor shall be deemed to be the fair value as determined reasonably and in good faith by the fair market value board of directors of the Additional Rights (Company or such portion of the assets and business of the non-surviving corporation as determined using such board may reasonably and in good faith determine to be attributable to such shares of Common Stock, Convertible Securities, rights or options, as the Black-Scholes option pricing model case may be. In the event of any consolidation or another method mutually agreed to by merger of the Company and in which the Investor). The Board Company is not the surviving corporation or in which the previously outstanding shares of Directors Common Stock of the Company shall respond promptlybe changed into or exchanged for the stock or other securities of another entity or in the event of any sale of all or substantially all of the assets of the Company for stock or other securities of any entity, in writing, the Company shall be deemed to an inquiry by have issued a number of shares of its Common Stock for stock or securities or other property of such entity computed on the Investors as basis of the actual exchange ratio on which the transaction was predicated and for a consideration equal to the fair market value on the date of such transaction of all such stock or securities or other property of such entity, and if any such calculation results in adjustment of the Additional Rights. In Exercise Price in accordance with Section 7(b), the event that the Board of Directors determination of the Company and the Investors are unable to agree number of shares of Common Stock issuable upon the fair market value exercise of the Additional RightsWarrants immediately prior to such merger, the Company and the Investors shall jointly select an appraiserconsolidation or sale, who is experienced in such matters. The decision for purposes of such appraiser Section 7(e), shall be final and conclusive, and made after giving effect to such adjustment of the cost of such appraiser shall be borne evenly by the Company and the InvestorExercise Price.

Consideration for Stock. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for cash (except as contemplated in Section 2.4 of the Purchase Agreement)cash, the consideration received therefor shall be deemed to be the net amount received by the Company therefor, after deduction without reduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a 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 in good faith by the Board of Directors of the Company, after without deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. The amount of consideration deemed to be received by the Company pursuant to the foregoing provisions of this paragraph (e) upon any issue or sale, pursuant to an established compensation plan of the Company to directors, officers or employees of the Company in connection with their employment, of shares of Common Stock, Options or Convertible Securities shall be increased by the amount of any tax benefit realized by the Company as a result of such issue or sale, the amount of such tax benefit being the amount by which the Federal and/or State income or other tax liability of the Company shall be reduced by reason of any deduction or credit in respect of such issue or sale. In case any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options options shall be deemed to have been issued for such without consideration. In case any shares of Common Stock, Options 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 therefor shall be deemed to be the fair value as determined in good faith by the Board of Directors of the Company. If Company of such portion of the assets and business of the non-surviving corporation as such Board shall determine to be attributable to such Common Stock, Options or Convertible Securities shall be issued Securities, as the case may be. In the event of any consolidation or sold by merger of the Company andin which the Company is not the surviving corporation or in the event of any sale of all or substantially all the assets of the Company for stock or other securities of any corporation, in connection therewith, other Options or Convertible Securities (the “Additional Rights”) are issued, then the consideration received or deemed to be received by the Company shall be reduced by the fair market value deemed to have issued a number of shares of its Common Stock for stock or securities of the Additional Rights (as determined using other corporation computed on the Black-Scholes option pricing model or another method mutually agreed to by the Company and the Investor). The Board of Directors basis of the Company shall respond promptly, in writing, to an inquiry by actual exchange ratio on which the Investors as transaction was predicated and for a consideration equal to the fair market value on the date of such transaction of such stock or securities of the Additional Rights. In the event that the Board of Directors other corporation, and, if any such calculation results in adjustment of the Company and Warrant Price, the Investors are unable to agree upon the fair market value determination of the Additional Rightsnumber of shares of Common Stock receivable under this Warrant immediately prior to such merger, the Company and the Investors shall jointly select an appraiserconsolidation or sale, who is experienced in such matters. The decision for purposes of such appraiser paragraph (j), shall be final and conclusive, and made after giving effect to such adjustment of the cost of such appraiser shall be borne evenly by the Company and the InvestorWarrant Price.

Consideration for Stock. In case If any shares of Common Stock, Options Stock or Convertible Securities or any rights or options to purchase any such Common Stock or Convertible Securities shall be issued or sold for cash (except as contemplated in Section 2.4 of the Purchase Agreement)cash, the consideration received therefor shall be deemed to be the net amount received by the Company therefor, after without deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case If any shares of Common Stock, Options Stock or Convertible Securities or any rights or options to purchase any such Common Stock or Convertible Securities shall be issued or sold for a 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 board of Directors directors of the Company, after without deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case If the Company shall declare or pay a dividend or make any Options shall be issued in connection with the issue and sale of other securities distribution upon any stock of the CompanyCompany payable in Common Stock, together comprising one integral transaction Convertible Securities or options, warrants or rights to purchase Common Stock or Convertible Securities, the securities issuable in which no specific consideration is allocated to payment of such Options by the parties thereto, such Options dividend or distribution shall be deemed to have been issued for such consideration as determined in good faith by the Board of Directors of the Companyor sold without consideration. If any shares of Common Stock, Options Stock or Convertible Securities or any rights or options to purchase such shares of Common Stock or Convertible Securities shall be issued in connection with any merger or sold by consolidation in which the Company and, is the surviving corporation (other than any consolidation or merger in connection therewith, other Options or Convertible Securities (which the “Additional Rights”) are issued, then the consideration received or deemed to be received by previously outstanding shares of Common Stock of the Company shall be reduced changed into or exchanged for the stock or other securities of another corporation), the amount of consideration therefor shall be deemed to be the fair value as determined reasonably and in good faith by the fair market value board of directors of the Additional Rights (Company or such portion of the assets and business of the non-surviving corporation as determined using such board may reasonably and in good faith determine to be attributable to such shares of Common Stock, Convertible Securities, rights or options, as the Black-Scholes option pricing model case may be. In the event of any consolidation or another method mutually agreed to by merger of the Company and in which the Investor). The Board Company is not the surviving corporation or in which the previously outstanding shares of Directors Common Stock of the Company shall respond promptlybe changed into or exchanged for the stock or other securities of another entity or in the event of any sale of all or substantially all of the assets of the Company for stock or other securities of any entity, in writing, the Company shall be deemed to an inquiry by have issued a number of shares of its Common Stock for stock or securities or other property of such entity computed on the Investors as basis of the actual exchange ratio on which the transaction was predicated and for a consideration equal to the fair market value on the date of such transaction of all such stock or securities or other property of such entity, and if any such calculation results in adjustment of the Additional Rights. In Exercise Price in accordance with Section 8(b), the event that the Board of Directors determination of the Company and the Investors are unable to agree number of shares of Common Stock issuable upon the fair market value exercise of the Additional RightsWarrants immediately prior to such merger, the Company and the Investors shall jointly select an appraiserconsolidation or sale, who is experienced in such matters. The decision for purposes of such appraiser Section 8(e), shall be final and conclusive, and made after giving effect to such adjustment of the cost of such appraiser shall be borne evenly by the Company and the InvestorExercise Price.

Consideration for Stock. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for cash (except as contemplated in Section 2.4 of the Purchase Agreement)cash, the consideration received therefor shall be deemed to be the net amount received by the Company therefor, after deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a consideration other than cashcash or for a consideration including cash and such other consideration, 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 by an independent investment bank mutually acceptable to the Holder and to the Company; PROVIDED, HOWEVER that the Holder shall have the absolute right to contest any such valuation in good faith arbitration to be conducted by a single arbitrator acting in accordance with the Board of Directors Rules of the CompanyAmerican Arbitration Association, using expedited procedures for resolution of commercial disputes, which arbitration shall be held in the City of New York), after deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. The costs and expenses of the investment bank shall be borne solely by the Company and in the event of any arbitration, each party shall bear its own costs and expenses. In case any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued for such consideration as determined by an independent investment bank mutually acceptable to the Holder and to the Company; PROVIDED, HOWEVER that the Holder shall have the absolute right to contest any such valuation in good faith arbitration to be conducted by a single arbitrator acting in accordance with the Board of Directors Rules of the Company. If Common StockAmerican Arbitration Association, Options or Convertible Securities using expedited procedures for resolution of commercial disputes, which arbitration shall be issued or sold by held in the Company and, in connection therewith, other Options or Convertible Securities (City of New York. The costs and expenses of the “Additional Rights”) are issued, then the consideration received or deemed to be received by the Company investment bank shall be reduced by the fair market value of the Additional Rights (as determined using the Black-Scholes option pricing model or another method mutually agreed to borne solely by the Company and the Investor). The Board of Directors of the Company shall respond promptly, in writing, to an inquiry by the Investors as to the fair market value of the Additional Rights. In the event that the Board of Directors of the Company any arbitration, each party shall bear its own costs and the Investors are unable to agree upon the fair market value of the Additional Rights, the Company and the Investors shall jointly select an appraiser, who is experienced in such matters. The decision of such appraiser shall be final and conclusive, and the cost of such appraiser shall be borne evenly by the Company and the Investorexpenses.