Common use of Current Market Value Clause in Contracts

Current Market Value. For purposes of any computation under Sections 3.5 and 3.7 hereof or this Article 4, the Current Market Value per share of Common Stock (the “Current Market Value”) at any date shall be (a) for purposes of Sections 3.5 and 3.7 hereof, the closing price of the Common Stock on the Trading Day immediately preceding the date of exercise of the applicable Warrant pursuant to Section 3 and (b) for purposes of this Article 4, the arithmetic average of the daily closing prices of such Common Stock for the shorter of (i) the twenty (20) consecutive Trading Days ending on the last full Trading Day prior to the Time of Determination (as defined below) and (ii) the consecutive Trading Days commencing on the date next succeeding the first public announcement of the event giving rise to the adjustment required by this Article 4 and ending on the Trading Day immediately prior to the Time of Determination. The term “Time of Determination” as used herein shall be the earlier to occur of (A) the date as of which the Current Market Value is to be computed and (B) if applicable, the date of commencement Confidential materials omitted and filed separately with the Secutities and Exchange Commission. Asterisks denote such omission. of “ex-dividend” trading in the Common Stock relating to the event giving rise to the adjustment required by this Article 4. The “closing price” of the Common Stock for any Trading Day shall be the last reported sale price, regular way, of the Common Stock on such Trading Day or, in case no such reported sale takes place on such Trading Day, the arithmetic average of the closing bid and closing asked prices of the Common Stock for such Trading Day, in each case on the principal Trading Market on which the Common Stock is then listed or included. Notwithstanding the foregoing, in the event that the Common Stock is not then listed or included on a Trading Market or if, for any other reason, the Current Market Value per share cannot be determined pursuant to the foregoing provisions of this Section 4.4, the Current Market Value per share of Common Stock shall be the Fair Market Value thereof and shall be determined in good faith by the Board, with the unanimous approval of the independent directors of the Board, not later than five (5) Business Days following the Time of Determination. The Company shall, promptly after such determination by the Board, deliver to each Holder written notice of the Current Market Value per share of Common Stock, as so determined by the Board, together with a resolution of the Board evidencing such determination.

Current Market Value. For purposes the purpose of any computation under Sections 3.5 and 3.7 hereof or this Article 4, the of Current Market Value under this Article 4 and Section 3.5, the "Current Market Value" per share of Common Stock (the “Current Market Value”) at any date shall be (a) for purposes of Sections 3.5 and 3.7 hereof, the closing price of the Common Stock on the Trading Day immediately preceding the date of exercise of the applicable Warrant pursuant to Section 3 and (b) for purposes of this Article 4, the arithmetic average of the daily closing prices of such Common Stock for (determined in accordance with the shorter of (isecond succeeding sentence) during the twenty (20) 20 consecutive Trading Days trading days ending on the last full Trading Day trading day on the exchange or market specified in the second succeeding sentence prior to the Time of Determination (as defined below) and (ii) the consecutive Trading Days commencing on the date next succeeding the first public announcement of the event giving rise to the adjustment required by this Article 4 and ending on the Trading Day immediately prior to the ). The term "Time of Determination. The term “Time of Determination” " as used herein shall be the time and date of the earlier to occur of (A) the date as of which the Current Market Value is to be computed and (B) if applicable, the date last full trading day on such exchange or market before the commencement of commencement Confidential materials omitted and filed separately with the Secutities and Exchange Commission. Asterisks denote such omission. of “"ex-dividend” " trading in the Common Stock relating to the event giving rise to the adjustment required by this Article 4. The “closing price” of the Common Stock price for any Trading Day day shall be the last reported sale price, price regular way, of the Common Stock on such Trading Day way or, in case no such reported sale takes place on such Trading Dayday, the arithmetic average of the closing bid and closing asked prices of the Common Stock regular way for such Trading Dayday, in each case (1) on the principal Trading Market national securities exchange on which the shares of Common Stock is then are listed or included. Notwithstanding the foregoing, in the event that to which such shares are admitted to trading or (2) if the Common Stock is not then listed or included admitted to trading on a Trading national securities exchange, in the over-the-counter market as reported by the Nasdaq National Market or ifany comparable system. In the absence of all of the foregoing, or if for any other reason, reason the Current Market Value per share cannot be determined pursuant to the foregoing provisions of this Section 4.44.7, the Current Market Value per share of Common Stock shall be the Fair Market Value thereof and shall be determined by the Board of Directors of the Company in good faith faith; provided, however, that if a majority in interest of the Holders of the Warrants shall deliver a written notice to the Company to the effect that they dispute the fairness of such determination (an "Objection Notice"), then the Company shall meet with such Holders who shall have delivered such Objection Notice to discuss the value set by the Board, with the unanimous approval Board of Directors of the independent directors Company. If within twenty Business Days after such meeting, a majority in interest of the Board, not later than five (5) Business Days following holders of the Time of Determination. The Company shall, promptly after such determination by the Board, Warrants shall deliver to each Holder written notice of the Company a further Objection Notice (the "Further Objection Notice"), the Current Market Value per share shall be determined by an independent investment banking firm selected by mutual agreement of Common Stock, as so one investment banker selected by the Company and one investment banker selected by a plurality of the Holders that submitted such Further Objection Notice. If the Current Market Value determined by the BoardBoard is less than the Current Market Value determined by the independent investment banking firm, together with a resolution the Company shall pay the fees and expenses of any investment bank involved in the determination of the Board evidencing such determinationCurrent Market Value. Otherwise, the Holders who delivered the Further Objection Notice shall pay all the fees and expenses of any investment bank involved in the determination of the Current Market Value.

Current Market Value. For purposes the purpose of any computation under Sections 3.5 and 3.7 hereof or this Article 4, the of Current Market Value under Section 3.6 and Section 4.2, the "Current Market Value" per share of Common Stock (the “Current Market Value”) at any date shall be (a) for purposes of Sections 3.5 and 3.7 hereofSection 3.6, the closing price of the Common Stock on the Trading Business Day immediately preceding prior to the date of the exercise of the applicable Warrant pursuant to Section Article 3 and (b) for purposes of this Article 4in all other cases, the arithmetic average of the daily closing prices of such Common Stock for the shorter of (i) the twenty (20) 20 consecutive Trading Days trading days ending on the last full Trading Day trading day on the exchange or market specified in the second succeeding sentence prior to the Time of Determination (as defined below) and (ii) the consecutive Trading Days period commencing on the date next succeeding the first public announcement of the event giving rise to the adjustment required by this Article 4 and ending on the Trading Day immediately issuance, sale, distribution or granting in question through such last full trading day prior to the Time of Determination. The term “"Time of Determination” " as used herein shall be the time and date of the earlier to occur of (A) the date as of which the Current Market Value is to be computed and or (B) if applicable, the date last full trading day on such exchange or market before the commencement of commencement Confidential materials omitted and filed separately with the Secutities and Exchange Commission. Asterisks denote such omission. of “"ex-dividend” " trading in the Common Stock relating to the event giving rise to the adjustment required by this Article 4Section 4.2. The “closing price” of the Common Stock price for any Trading Day day shall be the last reported sale price, price regular way, of the Common Stock on such Trading Day way or, in case no such reported sale takes place on such Trading Dayday, the arithmetic average of the closing bid and closing asked prices of the Common Stock regular way for such Trading Dayday, in each case (1) on the principal Trading Market national securities exchange on which the shares of Common Stock is then are listed or included. Notwithstanding the foregoing, in the event that to which such shares are admitted to trading or (2) if the Common Stock is not then listed or included admitted to trading on a Trading national securities exchange, in the over-the-counter market as reported by the Nasdaq National Market or ifany comparable system or (3) if the Common Stock is not listed on the Nasdaq National Market or a comparable system, as furnished by two members of the NASD selected from time to time in good faith by the Board for that purpose. In the absence of all of the foregoing, or if for any other reason, reason the Current Market Value per share cannot be determined pursuant to the foregoing provisions of this Section 4.44.7, the Current Market Value per share of Common Stock shall be the Fair Market Value fair value thereof and shall be determined in good faith by the Board, whose determination shall be supported by an opinion from an investment banking firm of reorganized national standing and evidenced by a Board resolution filed with the unanimous approval of the independent directors of the Board, not later than five (5) Business Days following the Time of Determination. The Company shall, promptly after such determination by the Board, deliver to each Holder written notice of the Current Market Value per share of Common Stock, as so determined by the Board, together with a resolution of the Board evidencing such determinationWarrant Agent.

Current Market Value. For the purposes of any computation under Sections 3.5 and 3.7 hereof or this Article Section 4, the Current Market Value per share of Common Stock or of any other security (the “Current Market Value”herein collectively referred to as a "security") at any the date herein specified shall be (1) if the Company does not have a class of equity securities registered under the Exchange Act, the value of the security (a) determined in good faith in the most recently completed arm's-length transaction between the Company and an unaffiliated third party in which such determination is necessary and the closing of which occurs on such date or shall have occurred within the six months preceding such date, (b) if no such transaction shall have occurred on such date or within such six-month period, as most recently determined as of a date within the six months preceding such date by an Independent Financial Expert in accordance with the criteria set out below (in the event of more than one such determination, the determination for the later date shall be used) or (ac) if no such determination shall have been made within such six-month period, determined as of such date by an Independent Financial Expert in accordance with the criteria for purposes such valuation set out below, (2) if the Company does have a class of Sections 3.5 and 3.7 hereofequity securities registered under the Exchange Act, deemed to be the closing price of the Common Stock on the Trading Day immediately preceding the date of exercise of the applicable Warrant pursuant to Section 3 and (b) for purposes of this Article 4, the arithmetic average of the daily closing market prices of such Common Stock security for 20 consecutive business days during the shorter period commencing 30 business days before such date or, if the Company has had a class of (i) equity securities registered under the twenty (20) Exchange Act for less than 30 consecutive Trading Days ending on business days before such date, then the last full Trading Day prior to the Time of Determination (as defined below) and (ii) the consecutive Trading Days commencing on the date next succeeding the first public announcement average of the event giving rise to daily market price for all of the adjustment required by this Article 4 and ending on the Trading Day immediately prior to the Time of Determinationbusiness days before such date for which daily market prices are available. The term “Time of Determination” as used herein market price for each such business day shall be the earlier to occur of be: (A) the date as of which the Current Market Value is to be computed and (B) if applicable, the date of commencement Confidential materials omitted and filed separately with the Secutities and Exchange Commission. Asterisks denote such omission. of “ex-dividend” trading in the Common Stock relating case of a security listed or admitted to the event giving rise to the adjustment required by this Article 4. The “closing price” of the Common Stock for trading on any Trading Day shall be securities exchange, the last reported sale price, regular way, of the Common Stock price on such Trading Day orday, in case or if no such reported sale takes place on such Trading Dayday, the arithmetic average of the closing bid and closing asked prices of the Common Stock for on such Trading Dayday, in each case on the principal Trading Market on which the Common Stock is then listed or included. Notwithstanding the foregoing, (B) in the event that the Common Stock is case of a security not then listed or included admitted to trading on any securities exchange, the last reported sale price on such day, or if no sale takes place on such day, the average of the closing bid and asked prices on such day, as reported by a Trading Market reputable quotation source designated by the Company, (C) in the case of a security not then listed or ifadmitted to trading on any securities exchange and as to which no such reported sale price or bid and asked prices are available, the average of the reported high bid and low asked prices on such day, as reported by a reputable quotation service, or a newspaper of general circulation in the Borough of Manhattan, City and State of New York, customarily published on each business day, designated by the Company, or if there shall be no bid and asked prices on such day, the average of the high bid and low asked prices, as so reported, on the most recent day (not more than 30 days prior to the date in question) for any other reasonwhich prices have been so reported, and (D) if there are no bid and asked prices reported during the 30 days prior to the date in question, the Current Market Value per share cannot of the security shall be determined pursuant to as if the foregoing provisions Company did not have a class of this Section 4.4equity securities registered under the Exchange Act. Where so required herein, the Current Market Value per share value of the Common Stock shall be the Fair Market Value thereof and shall determined by an "Independent Financial Expert," to be determined in good faith selected by the Board, with the unanimous approval Board of Directors of the independent directors Company and retained on customary terms and conditions, using one or more valuation methods that the Independent Financial Expert, in its best professional judgment, determines to be most appropriate but without giving effect to the discount for any lack of liquidity of the Board, Common Stock or to the fact that the Company may not later than five (5) Business Days following have any class of equity securities registered under the Time of DeterminationExchange Act. The Company shallshall cause the Independent Financial Expert to deliver to the Company, promptly with a copy to the Warrant Agent, a value report (the "Value Report") stating the methods of valuation considered or used and the value of said Common Stock as of the date of the Value Report, and containing a statement as to the nature and scope of the examination or investigation upon which the determination of value was made. The Independent Financial Expert shall consult with management of the Company in order to allow such management to comment upon such Independent Financial Expert's valuation. The Indepen dent Financial Expert may revise its Value Report based on such consultation, provided that the final Value Report shall reflect both the initial valuation and the determination to revise it. Any such Value Report or revision thereof shall be deemed final unless revised within five days after delivery to the Company, with a copy to the Warrant Agent. The Independent Financial Expert shall not be liable to the Company or the Holders for the contents of the Value Report if the Independent Financial Expert shall have prepared such determination Value Report in good faith. The Warrant Agent shall have no other duty with respect to the Value Report except to keep it on file and available for inspection by the Board, deliver to each Holder written notice of the Current Market Value per share of Common Stock, as so determined by the Board, together with a resolution of the Board evidencing such determinationHolders.

Current Market Value. For purposes the purpose of any computation under Sections 3.5 and 3.7 hereof or this Article 4, the of Current Market Value under this Article 4 and Section 3.6, the "Current Market Value" per share of Common Stock (the “Current Market Value”) at any date shall be (a) for purposes of Sections 3.5 and 3.7 hereofSection 3.6, the closing price of the Common Stock on the Trading Business Day immediately preceding prior to the date of the exercise of the applicable Warrant pursuant to Section Article 3 and (b) for purposes of this Article 4in all other cases, the arithmetic average of the daily closing prices of such Common Stock for the shorter of (i) the twenty (20) 20 consecutive Trading Days trading days ending on the last full Trading Day trading day on the exchange or market specified in the second succeeding sentence prior to the Time of Determination (as defined below) and (ii) the consecutive Trading Days commencing on the date next succeeding the first public announcement of the event giving rise to the adjustment required by this Article 4 and ending on the Trading Day immediately prior to the Time of Determinationsuch date. The term “Time of Determination” as used herein shall be the earlier to occur of (A) the date as of which the Current Market Value is to be computed and (B) if applicable, the date of commencement Confidential materials omitted and filed separately with the Secutities and Exchange Commission. Asterisks denote such omission. of “ex-dividend” trading in the Common Stock relating to the event giving rise to the adjustment required by this Article 4. The “closing price” of the Common Stock price for any Trading Day day shall be the last reported sale price, price regular way, of the Common Stock on such Trading Day way or, in case no such reported sale takes place on such Trading Dayday, the arithmetic average of the closing bid and closing asked prices of the Common Stock regular way for such Trading Dayday, in each case (1) on the principal Trading Market national securities exchange on which the shares of Common Stock is then are listed or included. Notwithstanding the foregoing, in the event that to which such shares are admitted to trading or (2) if the Common Stock is not then listed or included admitted to trading on a Trading national securities exchange, in the over-the-counter market as reported by the Nasdaq National Market or ifany comparable system or (3) if the Common Stock is not listed on the Nasdaq National Market or a comparable system, as furnished by two members of the NASD selected from time to time in good faith by the Board for that purpose. In the absence of all of the foregoing, or if for any other reason, reason the Current Market Value per share cannot be determined pursuant to the foregoing provisions of this Section 4.44.8, the Current Market Value per share of Common Stock shall be the Fair Market Value (x) the fair market value thereof and shall be determined in good faith in the most recently completed arm's-length transaction between the Company and a person other than an Affiliate of the Company and the closing of which occurs on such date or shall have occurred within the three months preceding such date or (y) if no transaction shall have occurred on such date or within such three-month period, the fair market value thereof as determined by an investment bank of nationally recognized standing selected by the Board, with Company and acceptable to the unanimous approval of the independent directors of the Board, not later than five (5) Business Days following the Time of DeterminationRequired Holders. The Company shall, promptly after such shall pay the fees and expenses of any investment bank involved in the determination by the Board, deliver to each Holder written notice of the Current Market Value per share of Common Stock, as so determined by the Board, together with a resolution of the Board evidencing such determinationValue.

Current Market Value. For purposes of any computation under Sections 3.5 and 3.7 hereof or this Article 4, the Current Market Value per share of Common Stock (the “Current Market Value”) at any date shall be (a) for purposes of Sections 3.5 and 3.7 hereof, the closing price of the Common Stock on the Trading Day immediately preceding the date of exercise of the applicable Warrant pursuant to Section 3 and (b) for purposes of this Article 4, the arithmetic average of the daily closing prices of such Common Stock for the shorter of (i) the twenty (20) consecutive Trading Days ending on the last full Trading Day prior to the Time of Determination (as defined below) and (ii) the consecutive Trading Days commencing on the date next succeeding the first public announcement of the event giving rise to the adjustment required by this Article 4 and ending on the Trading Day immediately prior to the Time of Determination. The term “Time of Determination” as used herein shall be the earlier to occur of (A) the date as of which the Current Market Value is to be computed and (B) if applicable, the date of commencement Confidential materials omitted and filed separately with the Secutities and Exchange Commission. Asterisks denote such omission. of “ex-dividend” trading in the Common Stock relating to the event giving rise to the adjustment required by this Article 4. The “closing price” of the Common Stock for any Trading Day shall be the last reported sale price, regular way, of the Common Stock on such Trading Day or, in case no such reported sale takes place on such Trading Day, the arithmetic average of the closing bid and closing asked prices of the Common Stock for such Trading Day, in each case on the principal Trading Market on which the Common Stock is then listed or included. Notwithstanding the foregoing, in the event that the Common Stock is not then listed or included on a Trading Market or if, for any other reason, the Current Market Value per share cannot be determined pursuant to the foregoing provisions of this Section 4.4, the Current Market Value per share of Common Stock shall be the Fair Market Value thereof and shall be determined in good faith by the Board, with the unanimous approval of the independent directors of the Board, not later than five (5) Business Trading Days following the Time of Determination. The Company shall, promptly after such determination by the Board, deliver to each Holder written notice of the Current Market Value per share of Common Stock, as so determined by the Board, together with a resolution of the Board evidencing such determination.

Current Market Value. For purposes the purpose of calculating the price for the exercise of the repurchase rights described in Section 4.1, the "Current Market Value" of a Share is deemed to be equal to the highest of (i) a pro rata share of the Company's book value, (ii) a pro rata share of the appraised value of the Company, or (iii) if there shall then be a public market for the Warrant Shares, the current market price of the Warrant Shares, in each case determined without discount for any computation illiquidity, minority interest, call option or otherwise. Current Market Value of Shares (and the Warrant Shares) will be determined on a fully diluted basis assuming the exercise of all outstanding options and warrants which at the time of valuation are exercisable. The appraised value of the Company will be determined by an investment banking firm or appraiser mutually acceptable to the Holder and Company. The cost of the investment banking firms and/or appraisers shall be shared equally by the Holder and the Company. The appraised value of the Company shall be determined on the basis of the sale of the Company as a going business in an arms length transaction between a willing buyer and a willing seller, neither of which is acting under Sections 3.5 and 3.7 hereof or this Article 4compulsion. If there shall then be a public market for the Shares, the Current Market Value per share of Common Stock (the “Current Market Value”) at any date shall be (a) for purposes of Sections 3.5 and 3.7 hereof, an amount equal to the closing price of the Common Stock on the Trading Day immediately preceding the date of exercise of the applicable Warrant pursuant to Section 3 and (b) for purposes of this Article 4, the arithmetic average of the daily closing prices of such Common Stock for the shorter product of (i) the twenty average of the daily market prices for each of the five (205) consecutive Trading Business Days ending on the last full Trading Day prior to the Time of Determination (as defined below) and immediately preceding such date multiplied by (ii) the consecutive Trading Days commencing on the date next succeeding the first public announcement all of the event giving rise to the adjustment required by this Article 4 issued and ending on the Trading Day immediately prior to the Time of Determinationoutstanding Shares at such time. The term “Time of Determination” as used herein shall be the earlier to occur of (A) the date as of which the Current Market Value is to be computed and (B) if applicable, the date of commencement Confidential materials omitted and filed separately with the Secutities and Exchange Commission. Asterisks denote daily market price for each such omission. of “ex-dividend” trading in the Common Stock relating to the event giving rise to the adjustment required by this Article 4. The “closing price” of the Common Stock for any Trading Business Day shall be (i) the last reported sale price, regular way, of the Common Stock price on such Trading Day orday on the principal exchange on which such Shares are then listed or admitted to trading, in case (ii) if no such reported sale takes place on such Trading Dayday on any such exchange, the arithmetic average of the last reported closing bid and closing asked prices of on such day as officially quoted on any exchange, or (iii) if the Common Stock for such Trading Day, in each case on the principal Trading Market on which the Common Stock is then listed or included. Notwithstanding the foregoing, in the event that the Common Stock is Shares are not then listed or included admitted to trading on a Trading Market or if, for any other reasonexchange, the Current Market Value per share cannot be determined pursuant to average of the foregoing provisions of this Section 4.4last reported closing bid and asked prices on such day in the over-the-counter market, the Current Market Value per share of Common Stock shall be the Fair Market Value thereof and shall be determined in good faith (A) as furnished by the BoardNational Association of Securities Dealers Automatic Quotation System or the National Quotation Bureau, with Inc., or (B) if neither such corporation at the unanimous approval time is engaged in the business of reporting such prices, as furnished by any similar firm then engaged in such business, or (C) if there is no such firm, as furnished by any member of the independent directors of NASD selected mutually by Holder and the Board, not later than five (5) Business Days following the Time of Determination. The Company shall, promptly after such determination by the Board, deliver to each Holder written notice of the Current Market Value per share of Common Stock, as so determined by the Board, together with a resolution of the Board evidencing such determinationCompany.

Current Market Value. For purposes the purpose of any computation under Sections 3.5 and 3.7 hereof or this Article 4, the of Current Market Value under Section 3.6 and Section 4.2, the “Current Market Value” per share of Common Stock (the “Current Market Value”) at any date shall be (a) for purposes of Sections 3.5 and 3.7 hereofSection 3.6, the closing price of the Common Stock on the Trading Business Day immediately preceding prior to the date of the exercise of the applicable Warrant pursuant to Section Article 3 and (b) for purposes of this Article 4in all other cases, the arithmetic average of the daily closing prices of such Common Stock for the shorter of (i) the twenty (20) 20 consecutive Trading Days trading days ending on the last full Trading Day trading day on the exchange or market specified in the second succeeding sentence prior to the Time of Determination (as defined below) and (ii) the consecutive Trading Days period commencing on the date next succeeding the first public announcement of the event giving rise to the adjustment required by this Article 4 and ending on the Trading Day immediately issuance, sale, distribution or granting in question through such last full trading day prior to the Time of Determination. The term “Time of Determination” as used herein shall be the time and date of the earlier to occur of (A) the date as of which the Current Market Value is to be computed and or (B) if applicable, the date of last full trading day on such exchange or market before the commencement Confidential materials omitted and filed separately with the Secutities and Exchange Commission. Asterisks denote such omission. of “ex-dividend” trading in the Common Stock relating to the event giving rise to the adjustment required by this Article 4Section 4.2. The “closing price” of the Common Stock price for any Trading Day day shall be the last reported sale price, price regular way, of the Common Stock on such Trading Day way or, in case no such reported sale takes place on such Trading Dayday, the arithmetic average of the closing bid and closing asked prices of the Common Stock regular way for such Trading Dayday, in each case (1) on the principal Trading Market national securities exchange on which the shares of Common Stock is then are listed or included. Notwithstanding the foregoing, in the event that to which such shares are admitted to trading or (2) if the Common Stock is not then listed or included admitted to trading on a Trading national securities exchange, in the over-the-counter market as reported by the Nasdaq National Market or ifany comparable system or (3) if the Common Stock is not listed on the Nasdaq National Market or a comparable system, as furnished by two members of the NASD selected from time to time in good faith by the Board for that purpose. In the absence of all of the foregoing, or if for any other reason, reason the Current Market Value per share cannot be determined pursuant to the foregoing provisions of this Section 4.44.6, the Current Market Value per share of Common Stock shall be the Fair Market Value fair value thereof and shall be determined in good faith by the Board, whose determination shall be evidenced by a Board resolution filed with the unanimous approval of the independent directors of the Board, not later than five (5) Business Days following the Time of Determination. The Company shall, promptly after such determination by the Board, deliver to each Holder written notice of the Current Market Value per share of Common Stock, as so determined by the Board, together with a resolution of the Board evidencing such determinationWarrant Agent.

Current Market Value. For purposes the purpose of any computation under Sections 3.5 and 3.7 hereof or this Article 4, the of Current Market Value under this Article 4 and Section 3.6, the "Current Market Value" per share of Common Stock (the “Current Market Value”) at any date shall be (a) for purposes of Sections 3.5 and 3.7 hereofSection 3.6, the closing price of the Common Stock on the Trading Business Day immediately preceding prior to the date of the exercise of the applicable Credit Warrant pursuant to Section Article 3 and (b) for purposes of this Article 4in all other cases, the arithmetic average of the daily closing prices of such Common Stock for the shorter of (i) the twenty (20) 20 consecutive Trading Days trading days ending on the last full Trading Day trading day on the exchange or market specified in the second succeeding sentence prior to the Time of Determination (as defined below) and (ii) the consecutive Trading Days commencing on the date next succeeding the first public announcement of the event giving rise to the adjustment required by this Article 4 and ending on the Trading Day immediately prior to the Time of Determinationsuch date. The term “Time of Determination” as used herein shall be the earlier to occur of (A) the date as of which the Current Market Value is to be computed and (B) if applicable, the date of commencement Confidential materials omitted and filed separately with the Secutities and Exchange Commission. Asterisks denote such omission. of “ex-dividend” trading in the Common Stock relating to the event giving rise to the adjustment required by this Article 4. The “closing price” of the Common Stock price for any Trading Day day shall be the last reported sale price, price regular way, of the Common Stock on such Trading Day way or, in case no such reported sale takes place on such Trading Dayday, the arithmetic average of the closing bid and closing asked prices of the Common Stock regular way for such Trading Dayday, in each case (1) on the principal Trading Market national securities exchange on which the shares of Common Stock is then are listed or included. Notwithstanding the foregoing, in the event that to which such shares are admitted to trading or (2) if the Common Stock is not then listed or included admitted to trading on a Trading national securities exchange, in the over-the-counter market as reported by the Nasdaq National Market or ifany comparable system or (3) if the Common Stock is not listed on the Nasdaq National Market or a comparable system, as furnished by two members of the NASD selected from time to time in good faith by the Board for that purpose. In the absence of all of the foregoing, or if for any other reason, reason the Current Market Value per share cannot be determined pursuant to the foregoing provisions of this Section 4.44.8, the Current Market Value per share of Common Stock shall be the Fair Market Value (x) the fair market value thereof and shall be determined in good faith in the most recently completed arm's-length transaction between the Company and a person other than an Affiliate of the Company and the closing of which occurs on such date or shall have occurred within the three months preceding such date or (y) if no transaction shall have occurred on such date or within such three-month period, the fair market value thereof as determined by an investment bank of nationally recognized standing selected by the Board, with Company and acceptable to the unanimous approval of the independent directors of the Board, not later than five (5) Business Days following the Time of DeterminationRequired Holders. The Company shall, promptly after such shall pay the fees and expenses of any investment bank involved in the determination by the Board, deliver to each Holder written notice of the Current Market Value per share of Common Stock, as so determined by the Board, together with a resolution of the Board evidencing such determinationValue.

Current Market Value. For purposes the purpose of any computation under Sections 3.5 and 3.7 hereof or this Article 4, the of Current Market Value under this Section 5 and Section 3.6, the “Current Market Value” per share of Common Stock (the “Current Market Value”) at any date shall be (a) for purposes of Sections 3.5 and 3.7 hereofSection 3.6, the closing price of the Common Stock on the Trading Business Day immediately preceding prior to the date of the exercise of the applicable Warrant pursuant to Section 3 and (b) for purposes of this Article 4in all other cases, the arithmetic weighted average of the daily closing prices of such Common Stock for the shorter of five (i) the twenty (205) consecutive Trading Days trading days ending on the last full Trading Day trading day on the exchange or market specified in the second succeeding sentence prior to the Time of Determination (as defined below) and (ii) the consecutive Trading Days commencing on the date next succeeding the first public announcement ); provided, however, that for purposes of the event giving rise to issuance of any Management Options, Current Market Value shall mean Fair Market Value as defined in the adjustment required by this Article 4 and ending on the Trading Day immediately prior to the Time of DeterminationManagement Incentive Plan. The term “Time of Determination” as used herein shall be the time and date of the earlier to occur of (A) the date as of which the Current Market Value is to be computed and computed, (B) if applicable, the date of the first public announcement of the issuance, sale, distribution or granting in question and (C) the last full trading day on such exchange or market before the commencement Confidential materials omitted and filed separately with the Secutities and Exchange Commission. Asterisks denote such omission. of “ex-dividend” trading in the Common Stock relating to the event giving rise to the adjustment required by this Article 4Section 5.8. The “closing price” of the Common Stock price for any Trading Day day shall be the last reported sale price, price regular way, of the Common Stock on such Trading Day or, or in case no such reported sale takes place on such Trading Dayday, the arithmetic average of the closing bid and closing asked prices of the Common Stock regular way for such Trading Dayday, in each case (1) on the principal Trading Market national securities exchange on which the shares of Common Stock is then are listed or included. Notwithstanding the foregoing, in the event that to which such shares are admitted to trading or (2) if the Common Stock is not then listed or included admitted to trading on a Trading national securities exchange, in the over-the-counter market as reported by the Nasdaq National Market or ifNasdaq Small Cap Market or any comparable system. In the absence of all of the foregoing, or if for any other reason, reason the Current Market Value per share cannot be determined pursuant to the foregoing provisions of this Section 4.45.8, the Current Market Value per share of Common Stock shall be the Fair Market Value fair market value thereof and shall be determined in good faith by the Board, with provided that any determination of fair market value of such shares or other assets under this Agreement shall be subject to the unanimous reasonable approval of the independent directors Majority in Interest, and provided, further that any dispute with regard to any such determination of the Board, not later than five (5) Business Days following the Time of Determinationfair market value shall be resolved by an Independent Valuation Firm. The Company shall, promptly after such shall pay the fees and expenses of any Independent Valuation Firm involved in the determination by the Board, deliver to each Holder written notice of the Current Market Value per share of Common Stock, as so determined by the Board, together with a resolution of the Board evidencing such determinationfair market value.

Current Market Value. For purposes the purpose of any computation under Sections 3.5 and 3.7 hereof or this Article 4, the of Current Market Value under this Article 4 and Section 3.6, the "Current Market Value" per share of Common Stock (the “Current Market Value”) at any date shall be (a) for purposes of Sections 3.5 and 3.7 hereofSection 3.6, the closing price of the Common Stock on the Trading Business Day immediately preceding prior to the date of the exercise of the applicable Credit Warrant pursuant to Section Article 3 and (b) for purposes of this Article 4in all other cases, the arithmetic average of the daily closing prices of such Common Stock for the shorter of (i) the twenty (20) 20 consecutive Trading Days trading days ending on the last full Trading Day trading day on the exchange or market specified in the second succeeding sentence prior to the Time of Determination (as defined below) and (ii) the consecutive Trading Days commencing on the date next succeeding the first public announcement of the event giving rise to the adjustment required by this Article 4 and ending on the Trading Day immediately prior to the Time of Determinationsuch date. The term “Time of Determination” as used herein shall be the earlier to occur of (A) the date as of which the Current Market Value is to be computed and (B) if applicable, the date of commencement Confidential materials omitted and filed separately with the Secutities and Exchange Commission. Asterisks denote such omission. of “ex-dividend” trading in the Common Stock relating to the event giving rise to the adjustment required by this Article 4. The “closing price” of the Common Stock price for any Trading Day day shall be the last reported sale price, price regular way, of the Common Stock on such Trading Day way or, in case no such reported sale takes place on such Trading Dayday, the arithmetic average of the closing bid and closing asked prices of the Common Stock regular way for such Trading Dayday, in each case (1) on the principal Trading Market national securities exchange on which the shares of Common Stock is then are listed or included. Notwithstanding the foregoing, in the event that to which such shares are admitted to trading or (2) if the Common Stock is not then listed or included admitted to trading on a Trading national securities exchange, in the over-the-counter market as reported by the Nasdaq National Market or ifany comparable system or (3) if the Common Stock is not listed on the Nasdaq National Market or a comparable system, as furnished by two members of the NASD selected from time to time in good faith by the Board for that purpose. In the absence of all of the foregoing, or if for any other reason, reason the Current Market Value per share cannot be determined pursuant to the foregoing provisions of this Section 4.44.8, the Current Market Value per share of Common Stock shall be the Fair Market Value (x) the fair market value thereof and shall be determined in good faith in the most recently completed arm's-length transaction between the Company and a person other than an Affiliate of the Company and the closing of which occurs on such date or shall have occurred within the three months preceding such date or (y) if no transaction shall have occurred on such date or within 15 17 such three-month period, the fair market value thereof as determined by an investment bank of nationally recognized standing selected by the Board, with Company and acceptable to the unanimous approval of the independent directors of the Board, not later than five (5) Business Days following the Time of DeterminationRequired Holders. The Company shall, promptly after such shall pay the fees and expenses of any investment bank involved in the determination by the Board, deliver to each Holder written notice of the Current Market Value per share of Common Stock, as so determined by the Board, together with a resolution of the Board evidencing such determinationValue.