Common use of Favored Nations Provision Clause in Contracts

Favored Nations Provision. Other than in connection with the Excepted Issuances, if at any time the Warrants are outstanding, the Company shall agree to or issue (the “Lower Price Issuance”) any Common Stock or securities convertible, exercisable or exchangeable for shares of Common Stock (or modify any of the foregoing which may be outstanding) to any person or entity at a price per share or conversion or exercise price per share which shall be less than the Warrant Exercise Price, without the consent of each Subscriber, then the Warrant Exercise Price shall automatically be reduced to such other lower price. For purposes of the issuance and adjustment described in this paragraph, the issuance of any security of the Company carrying the right to convert such security into shares of Common Stock or of any warrant, right or option to purchase Common Stock shall result in the reduction of the Exercise Price upon the sooner of the agreement to or actual issuance of such convertible security, warrant, right or option and again at any time upon any subsequent issuances of shares of Common Stock upon exercise of such conversion or purchase rights if such issuance is at a price lower than the Warrant Exercise Price in effect upon such issuance. The rights of each Subscriber set forth in this Section 12 are in addition to any other rights the Subscriber has pursuant to any Transaction Document, and any other agreement referred to or entered into in connection herewith or to which such Subscriber and Company are parties. The Company will not engage in a Lower Price Issuance if the Company’s compliance with this Section 12(a) could result in a violation of the Nasdaq Marketplace Rules.

Favored Nations Provision. Other than in connection with the Excepted Issuances, if at any time the Warrants Debentures are outstanding, the Company shall agree to or issue (the “Lower Price Issuance”) any Common Stock or securities convertible, convertible into or exercisable or exchangeable for shares of Common Stock (or modify any of the foregoing which may be outstanding) to any person or entity at a price per share or conversion or exercise price per share which shall be less than the Warrant Exercise PriceConversion Price in effect at such time, without the consent of each Subscriberthe Purchasers, then the Warrant Exercise Conversion Price shall automatically be reduced to such other lower price. Provided the Recapitalization is fully effectuated prior to November 1, 2010, the reduction of the Conversion Price made in connection with a Lower Price Issuance shall not be to less than (i) 40% of the actual initial Conversion Price in effect on the date of the Lower Price Issuance, but for the application of then Lower Price Issuance adjustment without giving effect to the Recapitalization, or (ii) $0.10, whichever is less. Common Stock issued or issuable by the Company for no consideration or for consideration that cannot be determined at the time of issue will be deemed issuable or to have been issued for $0.0001 per share of Common Stock. For purposes of the issuance and adjustment adjustments described in this paragraph, the issuance of any security of the Company carrying the right to convert such security into shares of Common Stock or of any warrant, right or option to purchase Common Stock shall result in the reduction issuance of the Exercise Price additional shares of Common Stock upon the sooner of the agreement to or actual issuance of such convertible security, warrant, right or option options and again at any time upon any subsequent issuances of shares of Common Stock upon exercise of such conversion or purchase rights if such issuance is at a price lower than the Warrant Exercise Conversion Price in effect upon such issuance. The rights of each Subscriber Purchasers set forth in this Section 12 are in addition to any other rights the Subscriber has Purchasers have pursuant to this Exchange Agreement, the Debentures, any other Transaction Document, and any other agreement referred to or entered into in connection herewith or to which such Subscriber Purchasers and Company are parties. The Company will not engage in a Lower Price Issuance if the Company’s compliance with this Section 12(a) could result in a violation of the Nasdaq Marketplace Rules.

Favored Nations Provision. Other than in connection with the Excepted Issuances, if at any time the Notes or Warrants are outstanding, the Company shall agree to or issue (the “Lower Price Issuance”) any Common Stock or securities convertible, convertible into or exercisable or exchangeable for shares of Common Stock (or modify any of the foregoing which may be outstanding) to any person or entity at a price per share or conversion or exercise price per share which shall be less than the Conversion Price in effect at such time, or if less than the Warrant Exercise Priceexercise price in effect at such time, without the consent of each Subscriberthe Subscribers, then the Conversion Price and Warrant Exercise Price exercise price shall automatically be reduced to such other lower price. The average Conversion Price of the Conversion Shares and average exercise price in relation to the Warrant Shares shall be calculated separately for the Conversion Shares and Warrant Shares. Common Stock issued or issuable by the Company for no consideration or for consideration that cannot be determined at the time of issue will be deemed issuable or to have been issued for $0.0001 per share of Common Stock. For purposes of the issuance and adjustment adjustments described in this paragraph, the issuance of any security of the Company carrying the right to convert such security into shares of Common Stock or of any warrant, right or option to purchase Common Stock shall result in the reduction issuance of the Exercise Price additional shares of Common Stock upon the sooner of the agreement to or actual issuance of such convertible security, warrant, right or option options and again at any time upon any subsequent issuances of shares of Common Stock upon exercise of such conversion or purchase rights if such issuance is at a price lower than the Conversion Price or Warrant Exercise Price exercise price in effect upon such issuance. The rights of each Subscriber Subscribers set forth in this Section 12 are in addition to any other rights the Subscriber has Subscribers have pursuant to this Agreement, the Notes, Warrants, any other Transaction Document, and any other agreement referred to or entered into in connection herewith or to which such Subscriber Subscribers and Company are parties. The Company will not engage in a Lower Price Issuance if the Company’s compliance with this Section 12(a) could result in a violation of the Nasdaq Marketplace Rules.

Favored Nations Provision. Other than in connection with the Excepted Issuances, if at any time the Notes or Warrants are outstanding, the Company shall agree to or issue (the “Lower Price Issuance”) any Common Stock or securities convertible, convertible into or exercisable or exchangeable for shares of Common Stock (or modify any of the foregoing which may be outstanding) to any person or entity at a price per share or conversion or exercise price per share which shall be less than the Conversion Price in effect at such time, or if less than the Warrant Exercise Priceexercise price in effect at such time, without the consent of each Subscriberthe Subscribers, then the Conversion Price and Warrant Exercise Price exercise price shall automatically be reduced to such other lower price. For purposes The average Purchase Price of the issuance Conversion Shares and adjustment described average exercise price in this paragraph, relation to the issuance of any security of Warrant Shares shall be calculated separately for the Conversion Shares and Warrant Shares. Common Stock issued or issuable by the Company carrying for no consideration or for consideration that cannot be determined at the right time of issue will be deemed issuable or to convert such security into shares have been issued for $0.001 per share of Common Stock or of any warrant, right or option to purchase Common Stock shall result in the reduction of the Exercise Price upon the sooner of the agreement to or actual issuance of such convertible security, warrant, right or option and again at any time upon any subsequent issuances of shares of Common Stock upon exercise of such conversion or purchase rights if such issuance is at a price lower than the Warrant Exercise Price in effect upon such issuanceStock. The rights of each Subscriber Subscribers set forth in this Section 12 are in addition to any other rights the Subscriber has Subscribers have pursuant to this Agreement, the Notes, Warrants, any Transaction Document, and any other agreement referred to or entered into in connection herewith or to which such Subscriber and Company are parties. The Company will not engage in a Lower Price Issuance if the Company’s compliance with this Section 12(a) could result in a violation of the Nasdaq Marketplace Rules.

Favored Nations Provision. Other than in connection with If during the Exclusion Period, except for the Excepted Issuances, if at any time the Warrants are outstanding, the Company shall offer, issue or agree to or issue (the “Lower Price Issuance”) any Common Stock or securities convertible, convertible into or exercisable or exchangeable for shares of Common Stock (or modify any of the foregoing which may be outstanding) to any person person, firm or entity corporation at a price per share or conversion or exercise price per share which shall be less than the Warrant Exercise Priceper share purchase price of the First Tranche Shares, without the consent of each Subscriberthe Subscriber still holding shares of Common Stock, then the Warrant Exercise Price Company shall automatically be reduced issue, for each such occasion, additional shares of Common Stock to the Subscriber so that the average per share purchase price of the shares of Common Stock issued to the Subscriber is equal to such other lower priceprice per share. The delivery to the Subscriber of the additional shares of Common Stock shall be not later than the closing date of the transaction giving rise to the requirement to issue additional shares of Common Stock. The Subscriber is granted the registration rights described in Section 11 hereof in relation to such additional shares of Common Stock except that the Filing Date and Effective Date vis-à-vis such additional common shares shall be the sixtieth (60th) and one hundred and twentieth (120th) date after the closing date giving rise to the requirement to issue the additional shares of Common Stock. For purposes of the issuance and adjustment described in this paragraph, the issuance of any security of the Company carrying the right to convert such security into shares of Common Stock or of any warrant, right or option to purchase Common Stock shall result in the reduction issuance of the Exercise Price additional shares of Common Stock upon the sooner of the agreement to or actual issuance of such convertible security, warrant, right or option and again at any time upon any subsequent issuances of shares of Common Stock upon exercise of such conversion or purchase rights if such issuance is at a price lower than the Warrant Exercise Price in effect upon such issuance. The rights of each Subscriber set forth in this Section 12 are in addition to any other rights the Subscriber has pursuant to any Transaction Document, and any other agreement referred to or entered into in connection herewith or to which such Subscriber and Company are parties. The Company will not engage in a Lower Price Issuance if the Company’s compliance with this Section 12(a) could result in a violation then purchase price per share of the Nasdaq Marketplace Rulesshares of Company Stock.

Favored Nations Provision. Other than in connection with the Excepted Issuances, if at any time the Notes or Warrants are outstanding, outstanding the Company shall offer, issue or agree to or issue (the “Lower Price Issuance”) any Common Stock or securities convertible, convertible into or exercisable or exchangeable for shares of Common Stock (or modify any of the foregoing which may be outstanding) to any person or entity at a price per share or conversion or exercise price per share which shall be less than the Conversion Price in respect of the Shares, or if less than the Warrant Exercise Priceexercise price in respect of the Warrant Shares, without the consent of each SubscriberSubscriber holding Notes, then Shares, Warrants, or Warrant Shares, the Conversion Price and Warrant Exercise Price exercise price shall automatically be reduced to such other lower priceprice as provided in the Notes and the Warrants. For purposes of the issuance and adjustment described in this paragraph, the issuance of any security of the Company carrying the right to convert such security into shares of Common Stock or of any warrant, right or option to purchase Common Stock shall result in the reduction of the Exercise Price adjustment described in this Paragraph upon the sooner of the written agreement to or actual issuance of such convertible security, warrant, right or option and again at any time upon any subsequent issuances of shares of Common Stock upon exercise of such conversion or purchase rights if such issuance is at a price lower than the Conversion Price or Warrant Exercise Price exercise price in effect upon such issuance. The rights of each the Subscriber set forth in this Section 12 are in addition to any other rights the Subscriber has pursuant to this Agreement, the Note, any Transaction Document, and any other agreement referred to or entered into in connection herewith or to which such Subscriber and Company are parties. The Company will not engage in a Lower Price Issuance if the Company’s compliance with this Section 12(a) could result in a violation of the Nasdaq Marketplace Rulesherewith.

Favored Nations Provision. Other than in connection with the Excepted Issuances, if at any time the for so long as Preferred Stock or Warrants are outstanding, if the Company shall offer, issue or agree to or issue (the “Lower Price Issuance”) any Common Stock or securities convertible, convertible into or exercisable or exchangeable for shares of Common Stock (or modify any of the foregoing which may be outstanding) to any person or entity at a price per share or conversion or exercise price per share which shall be less than the Conversion Price in respect of the Preferred Stock, or if less than the Warrant Exercise Priceexercise price in respect of the Warrants, without the consent of each SubscriberSubscriber holding Preferred Stock or Warrants, then the Conversion Price of the Preferred Stock and the Warrant Exercise Price exercise price shall automatically be reduced to such other lower price. For purposes of the issuance and adjustment described in this paragraph, the issuance of any security of the Company carrying the right to convert such security into shares of Common Stock or of any warrant, right or option to purchase Common Stock shall result in the reduction of in the Conversion Price and Exercise Price Price, if applicable, upon the sooner of the agreement to or actual issuance of such convertible security, warrant, right or option and again at any time upon any subsequent issuances of shares of Common Stock upon exercise of such conversion or purchase rights if such issuance is at a price lower than the Conversion Price or Warrant Exercise Price exercise price in effect upon such issuance. The rights of each the Subscriber set forth in this Section 12 are in addition to any other rights the Subscriber has pursuant to this Agreement, the Certificate of Designation, any Transaction Document, and any other agreement referred to or entered into in connection herewith herewith, and at law, equity or to which such Subscriber and Company are parties. The Company will not engage in a Lower Price Issuance if the Company’s compliance with this Section 12(a) could result in a violation of the Nasdaq Marketplace Rulesotherwise.

Favored Nations Provision. Other than in connection with issuance of Common Stock to a party who at the Excepted Issuancestime of this Subscription has a written agreement including the right to acquire Common Stock at a price lower than $0.50, if at any time within 3 years of the Warrants are outstanding, date of this Agreement the Company shall agree to or issue (the “Lower Price Issuance”) any Common Stock or securities convertible, convertible into or exercisable or exchangeable for shares of Common Stock (or modify any of the foregoing which may be outstanding) to any person or entity at a price per share or conversion or exercise price per share which shall be less than the Warrant Exercise Price, $0.50 without the consent of each the Subscriber, then the Warrant Exercise Company shall issue, for each such occasion, additional shares of Common Stock to the Subscriber respecting the Shares that are then still owned by the Subscriber at the time of the Lower Price shall automatically be reduced Issuance so that the average per share purchase price of the Shares owned by the Subscriber on the date of the Lower Price Issuance is equal to such other lower priceLower Price Issuance per share. The delivery to the Subscriber of the additional shares of Common Stock shall be not later than two business days after the closing date of the transaction giving rise to the requirement to issue additional shares of Common Stock. For purposes of the issuance and adjustment described in this paragraph, the issuance of any security of the Company carrying the right to convert such security into shares of Common Stock or of any warrant, right or option to purchase Common Stock shall result in the reduction issuance of the Exercise Price additional shares of Common Stock upon the sooner of the agreement to or actual issuance of such Common Stock, convertible security, warrant, right or option and again at any time upon any subsequent issuances of shares of Common Stock upon exercise of such conversion Common Stock, convertible security, warrant, right or purchase rights option if such issuance is at a price lower than the Warrant Exercise last Lower Price in effect upon such issuanceIssuance. The rights of each Subscriber set forth in this Section 12 are in addition to any other rights Common Stock issued or issuable by the Subscriber has pursuant to any Transaction Document, and any other agreement referred to or entered into in connection herewith Company for no consideration will be deemed issuable or to which such Subscriber and Company are parties. The Company will not engage in a Lower Price Issuance if the Company’s compliance with this Section 12(a) could result in a violation have been issued for $0.001 per share of the Nasdaq Marketplace RulesCommon Stock.

Favored Nations Provision. Other Until the sooner of 180 days from the Actual Effective Date of the Registration Statement, provided the Approval has been obtained or is not required by the applicable NASD Market Place Rules and/or Nasdaq’s corporate governance rules, or the date the Notes have been paid, other than in connection with the Excepted Issuances, if at any time the Warrants are outstanding, the Company shall offer, issue or agree to or issue (the “Lower Price Issuance”) any Common Stock common stock or securities convertible, convertible into or exercisable or exchangeable for shares of Common Stock common stock (or modify any of the foregoing which may be outstanding) to any person or entity at a price per share or conversion or exercise price per share which shall be less than the Warrant Exercise Price, Conversion Price without the consent of each SubscriberSubscriber holding Notes, then the Warrant Exercise Conversion Price shall automatically be reduced to such other lower issue price. For purposes of the issuance and adjustment described in this paragraph, the issuance of any security of the Company carrying the right to convert such security into shares of Common Stock or of any warrant, right or option to purchase Common Stock shall result in the reduction of the Exercise Conversion Price upon the sooner of the agreement to or actual issuance of such convertible security, warrant, right or option and again at any time upon any subsequent issuances of shares of Common Stock upon exercise of such conversion or purchase rights if such issuance is at a price lower than the Warrant Exercise Conversion Price in effect upon such issuance. The rights of each the Subscriber set forth in this Section 12 are in addition to any other rights the Subscriber has pursuant to this Agreement, the Note, any Transaction Document, and any other agreement referred to or entered into in connection herewith or to which such Subscriber and Company are parties. The Company will not engage in a Lower Price Issuance if the Company’s compliance with this Section 12(a) could result in a violation of the Nasdaq Marketplace Rulesherewith.

Favored Nations Provision. Other than in connection with Except for the Excepted Issuances, if -------------------------- at any time the Notes or Warrants are is outstanding, if the Company shall issue or agree to or issue (the “Lower Price Issuance”) any Common Stock common stock or securities convertible, convertible into or exercisable or exchangeable for shares of Common Stock common stock (or modify any of the foregoing which may be outstanding) to any person or entity at a price per share or conversion or exercise price per share which shall be less than the Conversion Price in respect of the Shares, or if less than the Warrant Exercise Priceexercise price in respect of the Warrant Shares, without the consent of each SubscriberSubscriber holding Notes, then Shares, Warrants, or Warrant Shares, the Conversion Price and Warrant Exercise Price shall automatically be reduced to such other lower priceprice per share. For purposes Additionally, if the Company shall, issue or agree to issue any of the issuance and adjustment described in aforementioned services to any person, firm or corporation at terms deemed by Subscriber to be more favorable to the other investor than the terms or conditions of this paragraphOffering, the issuance of any security of the Company carrying then Subscriber is granted the right to convert modify any such security into shares term or condition of Common Stock the Offering to be the same as any such term or condition of any warrant, right or option to purchase Common Stock shall result in the reduction of the Exercise Price upon the sooner of the agreement to or actual issuance of such convertible security, warrant, right or option and again at any time upon any subsequent issuances of shares of Common Stock upon exercise of such conversion or purchase rights if such issuance is at a price lower than the Warrant Exercise Price in effect upon such issuanceoffering. The rights of each the Subscriber set forth in this Section 12 are in addition to any other rights the Subscriber has pursuant to this Agreement, the Note, any Transaction Document, and any other agreement referred to or entered into in connection herewith or to which such Subscriber and Company are partiesherewith. The Company will not engage in a Lower Price Issuance if the Company’s compliance with this Section 12(a) could result in a violation of the Nasdaq Marketplace Rules.(d)