Common use of Deemed Issue of Common Stock Clause in Contracts

Deemed Issue of Common Stock. Other than Excluded Issuances (as defined below), if the Company at any time after the issuance of the Warrants but prior to the Termination Date shall issue any warrants or other rights or options to subscribe for or purchase Common Stock or Convertible Securities (as defined below) (“Options”), or any securities (directly or indirectly) convertible into or exchangeable for Common Stock, but excluding Options (“Convertible Securities”), or shall fix a record date for the determination of holders of shares of the Common Stock to receive any such Options or Convertible Securities, then the maximum number of shares of Common Stock (as set forth in the instrument relating thereto, assuming the satisfaction of any conditions to exercisability, convertibility or exchangeability, including payment of any conversion or exercise price, but without regard to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or, in the case of Convertible Securities and Options therefor, the conversion or exchange of such Convertible Securities, shall be deemed to be Additional Common Stock issued as of the time of such issue of Options or Convertible Securities or, in case such a record date shall have been fixed, as of 5:00 p.m. (New York City time) on such record date and the provisions hereof that are applicable to the issuance of Additional Common Stock shall apply thereto; provided, that Additional Common Stock shall not be deemed to have been issued unless the consideration per share (as determined in accordance with Section 3(d)(ii)) of such Additional Common Stock would be less than the Fair Market Value as of such issue date or record date; provided, further, that, in any such case in which Additional Common Stock is deemed to be issued, no further adjustments in the Exercise Price shall be made upon the subsequent issue of Convertible Securities or Common Stock upon the exercise of such Options or the conversion or exchange of such Convertible Securities.

Deemed Issue of Common Stock. Other than Excluded Issuances (as defined below), if i) If the Company at any time after the issuance of the Warrants but prior to the Termination Date expiration of the Exercise Period shall issue any warrants or other rights or options to subscribe for or purchase Common Stock Options or Convertible Securities (as defined below) (“Options”), or any securities (directly or indirectly) convertible into or exchangeable for Common Stock, but excluding Options (“Convertible Securities”), or shall fix a record date for the determination of holders of shares of the Common Stock to receive any such Options or Convertible Securities, then the maximum number of shares of Common Stock (as set forth in the instrument relating thereto, assuming the satisfaction of any conditions to exercisability, convertibility or exchangeability, including payment of any conversion or exercise price, exchangeability but without regard to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or, in the case of Convertible Securities and Options therefor, the conversion or exchange of such Convertible Securities, shall be deemed to be Additional Common Stock issued as of the time of such issue of Options or Convertible Securities or, in case such a record date shall have been fixed, as of 5:00 p.m. PM (New York City time) on such record date and the provisions hereof that are applicable to the issuance of Additional Common Stock shall apply thereto; provided, that Additional Common Stock shall not be deemed to have been issued unless the consideration per share (as determined in accordance with Section 3(d)(ii5.1(c)(ii)) of such Additional Common Stock would be less than ninety five percent (95%) of the Fair Market Value Current Sale Price as of such issue date or record date; provided, further, that, in any such case in which Additional Common Stock is are deemed to be issued, no further adjustments in the Exercise Price shall be made upon the subsequent issue of Convertible Securities or Common Stock upon the exercise of such Options or the conversion or exchange of such Convertible Securities.