Common use of Determination of Fair Market Value Clause in Contracts

Determination of Fair Market Value. For purposes of this Section 1.4(c), “fair market value” of a share of Common Stock as of a particular date (the “Determination Date”) shall mean: (i) If the Conversion Right is exercised in connection with and contingent upon a public offering, and if the Company’s Registration Statement relating to such public offering (“Registration Statement”) has been declared effective by the SEC, then the initial “Price to Public” specified in the final prospectus with respect to such offering. (ii) If the Conversion Right is not exercised in connection with and contingent upon a public offering, then as follows: (1) If traded on a securities exchange, the fair market value of the Common Stock shall be deemed to be the average of the closing prices of the Common Stock on such exchange over the five-day period ending one business day prior to the Determination Date or, if less, such number of days as the Common Stock has been traded on such exchange; (2) If traded over-the-counter, the fair market value of the Common Stock shall be deemed to be the average of the closing bid prices of the Common Stock over the five-day period ending one business day prior to the Determination Date or, if less, such number of days as the Common Stock has been traded over-the-counter; and (3) If there is no public market for the Common Stock, then fair market value shall be determined in good faith by the Board of Directors of the Company.

Determination of Fair Market Value. For purposes of this Section 1.4(c)10.3, “"fair market value” " of a share of Common Stock as of a particular date (the “"Determination Date”") shall mean: (i) If the Conversion Right is exercised in connection with and contingent upon a public offeringPublic Offering, and if the Company’s 's Registration Statement relating to such public offering Public Offering (“"Registration Statement”") has been declared effective by the SEC, then the initial “"Price to Public” " specified in the final prospectus with respect to such offering. (ii) If the Conversion Right is not exercised in connection with and contingent upon a public offeringPublic Offering, then as follows: (1A) If traded on a securities exchange, the fair market value of the Common Stock shall be deemed to be the average of the closing prices of the Common Stock on such exchange over the five30-day period ending one five business day days prior to the Determination Date or, if less, such number of days as the Common Stock has been traded on such exchangeDate; (2B) If traded over-the-counter, the fair market value of the Common Stock shall be deemed to be the average of the closing bid prices of the Common Stock over the five30-day period ending one five business day days prior to the Determination Date or, if less, such number of days as the Common Stock has been traded over-the-counterDate; and (3C) If there is no public market for the Common Stock, then fair market value shall be determined in good faith by mutual agreement of the Board holder of Directors of this Warrant and the Company.

Determination of Fair Market Value. For purposes of this Section 1.4(c)8, “"fair market value” " of a share of Common Stock Share as of a particular date (the “"Determination Date”") shall mean: (ia) If the Conversion Right is exercised in connection with and contingent upon a public offeringPublic Offering, and if the Company’s 's Registration Statement relating to such public offering Public Offering (“"Registration Statement”") has been declared effective by the SECSecurities and Exchange Commission, then the initial “"Price to Public” " specified in the final prospectus with respect to such offering. (iib) If the Conversion Right is not exercised in connection with and contingent upon a public offeringPublic Offering, then as follows: (1c) If traded on a securities exchangeexchange or The Nasdaq Stock Market, the fair market value of the Common Stock shall be deemed to be the average of the closing or last reported sale prices of the Common Stock on such exchange or market over the five-thirty day period ending one five business day days prior to the Determination Date orDate, if less, and the fair market value of the Shares shall be deemed to be such number fair market value of days as the Common Stock has been traded on such exchangeStock; (2d) If otherwise traded in an over-the-countercounter market, the fair market value of the Common Stock shall be deemed to be the average of the closing bid ask prices of the Common Stock over the five-thirty day period ending one five business day days prior to the Determination Date orDate, if less, and the fair market value of the Shares shall be deemed to be such number fair market value of days as the Common Stock has been traded over-the-counterStock; and (3e) If there is no public market for the Common Stock, then fair market value shall be the price reasonably determined in good faith by the Board of Directors of the Company.

Determination of Fair Market Value. For purposes of this Section 1.4(c)10.2, “"fair market value” " of a share of Common Stock as of a particular date (the “"Determination Date”") shall mean: (i) If the Conversion Right is exercised in connection with and contingent upon a public offeringPublic Offering, and if the Company’s 's Registration Statement relating to such public offering Public Offering (“"Registration Statement”") has been declared effective by the SECSecurities and Exchange Commission, then the initial “"Price to Public” " specified in the final prospectus with respect to such offering. (ii) If the Conversion Right is not exercised in connection with and contingent upon a public offeringPublic Offering, then as follows: (1A) If traded on a securities exchange, the fair market value of the Common Stock shall be deemed to be the average of the closing prices of the Common Stock on such exchange over the five30-day period ending one five business day days prior to the Determination Date or, if less, such number of days as the Common Stock has been traded on such exchangeDate; (2B) If traded on the NASDAQ Stock Market or other over-the-counterthe- counter system, the fair market value of the Common Stock shall be deemed to be the average of the closing bid prices of the Common Stock over the five30-day period ending one five business day days prior to the Determination Date or, if less, such number of days as the Common Stock has been traded over-the-counterDate; and (3C) If there is no public market for the Common Stock, then fair market value shall be determined by mutual agreement of the holder of this Warrant and the Company provided, however, that if the Company and the -------- ------- Holder cannot agree on such value, such value shall be determined by an independent valuation firm experienced in valuing businesses such as the Company and jointly selected in good faith by the Board Company and the Holder. Fees and expenses of Directors of the valuation firm shall be paid for by the Company.

Determination of Fair Market Value. For purposes of this Section 1.4(c)10.3, “"fair market value” " of a share of Common Capital Stock as of a particular date (the “Determination Date”"DETERMINATION DATE") shall mean: (i1) If the Conversion Right is exercised in connection with and contingent upon a public offeringPublic Offering, and if the Company’s 's Registration Statement relating to such public offering Public Offering (“Registration Statement”"REGISTRATION STATEMENT") has been declared effective by the SEC, then the initial “"Price to Public” " specified in the final prospectus with respect to such offering. (ii2) If the Conversion Right is not exercised in connection with and contingent upon a public offeringPublic Offering, then as follows: (1A) If traded on a securities exchangeexchange or the Nasdaq National Market, the fair market value of the Common Capital Stock shall be deemed to be the average of the closing prices of the Common Stock on such exchange or market over the five20-day period ending one five business day days ending immediately prior to the applicable Determination Date or, if less, such number of days as the Common Stock has been traded on such exchangeDate; (2B) If traded over-the-counter, the fair market value of the Common Capital Stock shall be deemed to be the average of the closing bid prices of the Common Stock over the five20-day period ending one business day five days ending immediately prior to the applicable Determination Date or, if less, such number of days as the Common Stock has been traded over-the-counterDate; and (3C) If there is no public market for the Common Stock, then fair market value shall be determined in good faith by the Board board of Directors directors of the Company.

Determination of Fair Market Value. For purposes of this Section 1.4(c), “"fair market value” " of a share of Common Stock as of a particular date (the “"Determination Date”") shall mean: (i) If the Conversion Right is exercised in connection with and contingent upon a public offering, and if the Company’s 's Registration Statement relating to such public offering (“"Registration Statement”") has been declared effective by the SEC, then the initial “"Price to Public” " specified in the final prospectus with respect to such offering. (ii) If the Conversion Right is not exercised in connection with and contingent upon a public offering, then as follows: (1) If traded on a securities exchange, the fair market value of the Common Stock shall be deemed to be the average of the closing prices of the Common Stock on such exchange over the five-day period ending one business day prior to the Determination Date or, if less, such number of days as the Common Stock has been traded on such exchange; (2) If traded over-the-counter, the fair market value of the Common Stock shall be deemed to be the average of the closing bid prices of the Common Stock over the five-day period ending one business day prior to the Determination Date or, if less, such number of days as the Common Stock has been traded over-the-counter; and (3) If there is no public market for the Common Stock, then fair market value shall be determined in good faith by the Board of Directors of the Company.

Determination of Fair Market Value. For purposes of this Section 1.4(c2.4(c), “"fair market value” " of a share of Common Stock as of a particular date (the “"Determination Date”") shall mean: (i) If the Conversion Right is exercised in connection with and contingent upon a public offering, and if the Company’s 's Registration Statement relating to such public offering (“"Registration Statement”") has been declared effective by the SECCommission, then the initial “"Price to Public” " specified in the final prospectus with respect to such offering. (ii) If the Conversion Right is not exercised in connection with and contingent upon a public offering, then as follows: (1) If traded on a securities exchange, the fair market value of the Common Stock shall be deemed to be the average of the closing prices of the Common Stock on such exchange over the five-day period ending one business day prior to the Determination Date or, if less, such number of days as the Common Stock has been traded on such exchange; (2) If traded over-the-counter, the fair market value of the Common Stock shall be deemed to be the average of the closing bid prices of the Common Stock over the five-day period ending one business day prior to the Determination Date or, if less, such number of days as the Common Stock has been traded over-the-counter; and (3) If there is no public market for the Common Stock, then fair market value shall be determined in good faith by the Board of Directors of the Company.

Determination of Fair Market Value. For purposes of this Section 1.4(c)10.3, “"fair market value” " of a share of Common Capital Stock as of a particular date (the “"Determination Date”") shall mean: (i) If the Conversion Right is exercised in connection with and contingent upon a public offeringPublic Offering, and if the Company’s 's Registration Statement relating to such public offering Public Offering (“"Registration Statement”") has been declared effective by the SEC, then the initial “"Price to Public” " specified in the final prospectus with respect to such offering. (ii) If the Conversion Right is not exercised in connection with and contingent upon a public offeringPublic Offering, then as follows: (1A) If traded on a securities exchangeexchange or the Nasdaq National Market, the fair market value of the Common Capital Stock shall be deemed to be the average of the closing prices of the Common Stock on such exchange or market over the five20-day period ending one five business day days ending immediately prior to the applicable Determination Date or, if less, such number of days as the Common Stock has been traded on such exchangeDate; (2B) If traded over-the-counter, the fair market value of the Common Capital Stock shall be deemed to be the average of the closing bid prices of the Common Stock over the five20-day period ending one business day five days ending immediately prior to the applicable Determination Date or, if less, such number of days as the Common Stock has been traded over-the-counterDate; and (3C) If there is no public market for the Common Stock, then fair market value shall be determined in good faith by the Board board of Directors directors of the Company.

Determination of Fair Market Value. For purposes of this Section 1.4(c)10, “"fair market value” values, of a share of Common Stock as of a particular date (the “Determination Date”) Conversion Date shall mean: (i) If the Conversion Right is exercised in connection with and contingent upon a public offeringPublic Offering, and if the Company’s 's Registration Statement relating to such public offering Public Offering - (“"Registration Statement”") has been declared effective by the SEC, then the initial “"Price to Public” " specified in the final prospectus with respect to such offering. (ii) If the Conversion Right is not exercised in connection with and contingent upon a public offeringPublic Offering, then as follows: (1A) If traded on a securities exchange, the fair market value of the Common Stock shall be deemed to be the average of the closing prices of the Common Stock on such exchange over the five30-day period ending one five business day days prior to the Determination Date or, if less, such number of days as the Common Stock has been traded on such exchange; Conversion Date; (2B) If traded over-the-counter, the fair market value of the Common Stock shall be deemed to be the average of the closing bid prices of the Common Stock over the five30-day period ending one five business day days prior to the Determination Date or, if less, such number of days as the Common Stock has been traded over-the-counterConversion Date; and and (3C) If there is no public market for the Common Stock, then fair market value shall be determined in good faith by mutual agreement of the holder of this Warrant and the Company, and if the holder and the Company are unable to so agree, at the Company's sole expense, by an investment banker of national reputation selected by the Board Company and reasonably acceptable to the holder of Directors of the Companythis Warrant. 11.

Determination of Fair Market Value. For purposes of this Section 1.4(c)1.4, “fair "Fair market value” " of a share of Common Stock as of a particular date (the “"Determination Date”") shall mean: (i) If the Conversion Right is exercised in connection with and contingent upon a public offering, and if the Company’s 's Registration Statement relating to such public offering (“Registration Statement”) has been declared effective by the SEC, then the initial “"Price to Public” " specified in the final prospectus with respect to such offering. (ii) If the Conversion Right is not exercised in connection with and contingent upon a public offering, then as follows: (1) If traded on a securities exchange, the fair market value of the Common Stock shall be deemed to be the average of the closing prices of the Common Stock on such exchange over the five-day period ending one business day prior to the Determination Date or, if less, such number of days as the Common Stock has been traded on such exchange; (2) If traded over-the-counter, the fair market value of the Common Stock shall be deemed to be the average of the closing bid prices of the Common Stock over the five-day period ending one business day prior to the Determination Date or, if less, such number of days as the Common Stock has been traded over-the-counter; and (3) If there is no public market for the Common Stock, then fair market value shall be determined in good faith by the Board of Directors of the Company.

Determination of Fair Market Value. For purposes of this Section 1.4(c)10.3, “"fair market value” " of a share of Common Stock as of a particular date (the “"Determination Date”") shall mean: (i) If the Conversion Right is exercised in connection with and contingent upon a public offeringPublic Offering, and if the Company’s 's Registration Statement relating to such public offering Public Offering (“"Registration Statement”") has been declared effective by the SEC, then the initial “"Price to Public” " specified in the final prospectus with respect to such offering. (ii) If the Conversion Right is not exercised in connection with and contingent upon a public offeringPublic Offering, then as follows: (1A) If traded on a securities exchange, the fair market value of the Common Stock shall be deemed to be the average of the closing prices of the Common Stock on such exchange over the five30-day period ending one five business day days prior to the Determination Date or, if less, such number of days as the Common Stock has been traded on such exchange; Date; (2B) If traded over-the-counter, the fair market value of the Common Stock shall be deemed to be the average of the closing bid prices of the Common Stock over the five30-day period ending one five business day days prior to the Determination Date or, if less, such number of days as the Common Stock has been traded over-the-counterDate; and and (3C) If there is no public market for the Common Stock, then fair market value shall be determined in good faith by mutual agreement of the Board holder of Directors of this Warrant and the Company.

Determination of Fair Market Value. For purposes of this Section 1.4(c)3.5, “fair market value” of a share of Common Stock Series D Preferred as of a particular date (the “Determination Date”) shall mean: (i) If the Conversion Right is exercised in connection with and contingent upon a public offering, and if the Company’s Registration Statement relating to such public offering (“Registration Statement”) has been declared effective by the SECSecurities and Exchange Commission, then the initial “Price to Public” of a share of Common Stock specified in the final prospectus with respect to such offering. (ii) If the Conversion Right is not exercised in connection with and contingent upon a public offering, then as follows: (1) If traded on a securities exchange, the fair market value of the Common Stock shall be deemed to be the average of the closing prices of the Common Stock on such exchange over the five-day period ending one business day Business Day prior to the Determination Date or, if less, such number of days as the Common Stock has been traded on such exchange; (2) If traded over-the-counter, the fair market value of the Common Stock shall be deemed to be the average of the closing bid prices of the Common Stock over the five-day period ending one business day Business Day prior to the Determination Date or, if less, such number of days as the Common Stock has been traded over-the-counter; and (3) If there is no public market for the Common StockCompany’s Series D Preferred, then fair market value of a share of such Series D Preferred shall be determined in good faith by the Board of Directors of the Company.

Determination of Fair Market Value. For purposes of this Section 1.4(c)10.2, “fair market value” of a share of Common Stock as of a particular date (the “Determination Date”) shall mean: (i) If the Conversion Right is exercised in connection with and contingent upon a public offeringPublic Offering, and if the Company’s Registration Statement relating to such public offering (“Registration Statement”) Public Offering has been declared effective by the SECSecurities and Exchange Commission, then the initial “Price to Public” specified in the final prospectus with respect to such offering. (ii) If the Conversion Right is not exercised in connection with and contingent upon a public offeringPublic Offering, then as follows: (1A) If traded on a securities exchange, the fair market value of the Common Stock shall be deemed to be the average of the closing prices of the Common Stock on such exchange over the five-day period ending one business day five (5) trading days immediately prior to the Determination Date or, if less, such number of days as the Common Stock has been traded on such exchangeDate; (2B) If traded on an over-the-countercounter system, the fair market value of the Common Stock shall be deemed to be the average of the closing bid prices of the Common Stock over the five-day period ending one business day five (5) trading days immediately prior to the Determination Date or, if less, such number of days as the Common Stock has been traded over-the-counterDate; and (3C) If there is no public market for the Common Stock, then fair market value shall be determined in good faith by the Board of Directors of the CompanyCompany in its good faith, reasonable judgment. If closing prices or closing bid prices are no longer reported by a securities exchange or other trading system, the closing price or closing bid price shall be that which is reported by such securities exchange or other trading system at 4:00 p.m. New York City time on the applicable trading day.

Determination of Fair Market Value. For purposes of this Section 1.4(c)10.3, “"fair market value” " of a share of Common Stock Stock, as applicable, as of a particular date (the “"Determination Date”") shall mean: (i) If the Conversion Right is exercised in connection with and contingent upon a public offeringPublic Offering, and if the Company’s 's Registration Statement relating to such public offering Public Offering (“"Registration Statement”") has been declared effective by the SEC, then the initial “"Price to Public” " specified in the final prospectus with respect to such offering. (ii) If the Conversion Right is not exercised in connection with and contingent upon a public offeringPublic Offering, then as follows: (1A) If traded on a securities exchange, the fair market value of the Common Stock shall be deemed to be the average of the closing prices of the Common Stock on such exchange over the five30-day period ending one five business day days prior to the Determination Date or, if less, such number of days as the Common Stock has been traded on such exchangeDate; (2B) If traded over-the-counter, the fair market value of the Common Stock shall be deemed to be the average of the closing bid prices of the Common Stock over the five30-day period ending one five business day days prior to the Determination Date or, if less, such number of days as the Common Stock has been traded over-the-counterDate; and (3C) If there is no public market for the Common Stock, then fair market value shall be determined in good faith by mutual agreement of the Board holder of Directors of this Warrant and the Company.

Determination of Fair Market Value. For purposes of this Section 1.4(c)Paragraph 10.3, “fair market value” value of a share of Common Stock as of a particular date (the “"Determination Date”") shall mean: (i) If the Conversion Right is exercised in in, connection with and contingent upon a public offeringPublic Offering, and if the Company’s 's Registration Statement relating to such public offering Public Offering (“"Registration Statement”") has been declared effective by the SECSecurities and Exchange Commission, then the initial “"Price to Public” " specified in the final prospectus with respect to such offering. (ii) If the Conversion Right is not exercised in connection with and contingent upon a public offeringPublic Offering, then as follows: (1A) If traded on a securities exchange, the fair market value of the Common Stock shall be deemed to be the average of the closing prices of the Common Stock on such exchange over the five30-day period ending one five business day days prior to the Determination Date or, if less, such number of days as the Common Stock has been traded on such exchangeDate; (2B) If traded over-the-counter, the fair market value of the Common Stock shall be deemed to be the average of the closing bid prices of the Common Stock over the five30-day period ending one five business day days prior to the Determination Date or, if less, such number of days as the Common Stock has been traded over-the-counterDate; and (3C) If there is no public market for the Common Stock, then fair market value shall be determined in good faith by mutual agreement of the holder of this Warrant and the Company, and if the holder and the Company are unable to so agree, by an investment banker of national reputation selected by the Board Company and reasonably acceptable to the holder of Directors of the Companythis Warrant.

Determination of Fair Market Value. For purposes of this Section 1.4(c)10.2, “---------------------------------- "fair market value” " of a share of Common Stock as of a particular date (the “"Determination Date”") shall mean: (i) If the Conversion Right is exercised in connection with and contingent upon a public offeringPublic Offering, and if the Company’s 's Registration Statement relating to such public offering Public Offering (“"Registration Statement”") has been declared effective by the SECSecurities and Exchange Commission, then the initial “Price "Public to Public” " specified in the final prospectus with respect to such offering. (ii) If the Conversion Right is not exercised in connection with and contingent upon a public offeringPublic Offering, then as follows: (1A) If traded on a securities exchange, the fair market value of the Common Stock shall be deemed to be the average of the closing prices of the Common Stock on such exchange over the five30-day period ending one five business day days prior to the Determination Date or, if less, such number of days as the Common Stock has been traded on such exchangeDate; (2B) If traded on the Nasdaq Stock Market or other over-the-counterthe- counter system, the fair market value of the Common Stock shall be deemed to be the average of the closing bid prices of the Common Stock over the five30-day period ending one five business day days prior to the Determination Date or, if less, such number of days as the Common Stock has been traded over-the-counterDate; and (3C) If there is no public market for the Common Stock, then fair market value shall be determined in good faith by mutual agreement of the Board holder of Directors of this Warrant and the Company.

Determination of Fair Market Value. For purposes of this ---------------------------------- Section 1.4(c)10.3, “"fair market value” " of a share of Common Stock as of a particular date (the “"Determination Date”") shall mean: (i) If the Conversion Right is exercised in connection with and contingent upon a public offeringPublic Offering, and if the Company’s 's Registration Statement relating to such public offering Public Offering (“"Registration Statement”") has been declared effective by the SEC, then the initial “"Price to Public” " specified in the final prospectus with respect to such offering. (ii) If the Conversion Right is not exercised in connection with and contingent upon a public offeringPublic Offering, then as follows: (1A) If traded on a securities exchangeexchange or the Nasdaq National Market, the fair market value of the Common Stock shall be deemed to be the average of the closing sale prices of the Common Stock on such exchange over the five-30 trading day period ending one five business day days prior to the Determination Date or, if less, such number of days as the Common Stock has been traded on such exchangeDate; (2B) If traded over-the-counter, the fair market value of the Common Stock shall be deemed to be the average of the closing bid prices of the Common Stock over the five30-day period ending one five business day days prior to the Determination Date or, if less, such number of days as the Common Stock has been traded over-the-counterDate; and (3C) If there is no public market for the Common Stock, then fair market value shall be determined in good faith by mutual agreement of the Board holder of Directors of this Warrant and the Company.