Common use of Issuance of Common Stock Below Fair Market Value Clause in Contracts

Issuance of Common Stock Below Fair Market Value. (i) If the Company shall, at any time and from time to time, after the date hereof, directly or indirectly, sell or issue shares of Common Stock (other than Exempt Securities) (regardless of whether originally issued or from the Company’s treasury) at a price per share of Common Stock which is lower than the Fair Market Value per share of Common Stock, then, subject to clause (ii) of this Section 3(d), the Purchase Price shall be reduced to a price determined by multiplying the Purchase Price in effect immediately prior thereto by a fraction, the numerator of which shall be the sum of the number of shares of Common Stock outstanding immediately prior to such sale or issuance plus the number of shares of Common Stock which the aggregate consideration received (determined as provided below) for such sale or issuance would purchase at the Fair Market Value per share of Common Stock and the denominator of which shall be the total number of shares of Common Stock outstanding immediately after such sale or issuance. Such adjustment shall be made successively whenever such sale or issuance is made. If the Company shall sell or issue shares of Common Stock for a consideration consisting, in whole or in part, of property other than cash or its equivalent, then in determining the “price per share of Common Stock” and the “consideration” received or receivable by or payable to the Company for purposes of the first sentence and the immediately preceding sentence of this Section 3(d), the fair value of such property shall be determined in good faith by the Board of Directors of the Company. (ii) No adjustment shall be made to the Purchase Price pursuant to clause (i) of this Section 3(d) in connection with the issuance of (A) shares issued in any of the transactions described in Section 3(a), (b) and (c) hereof, including upon the exercise of any right, option, warrant or convertible or exchangeable security and (B) shares issued upon exercise of this Warrant.