Common use of Issuances Below Fair Market Value Clause in Contracts

Issuances Below Fair Market Value. If, at any time after the Closing Date and prior to a Public Market Issuance, the Issuer shall issue or sell (or, in accordance with Section 5.3(b), shall be deemed to have issued or sold) any shares of Common Stock (other than any issuance for which an adjustment is made pursuant to Section 5.2 or 5.4 or no adjustment is required pursuant to Section 5.9(d)) without consideration or for a consideration per share less SF1:761466 10 than the Fair Market Value for such Common Stock determined as of the date of such issuance or sale, then, effective immediately upon such issuance or sale, the Exercise Price and the number of Warrant Shares issuable upon exercise of each Warrant shall be adjusted as follows: (i) The Exercise Price shall be reduced to an amount equal to the product of (x) the Exercise Price in effect immediately prior to such issuance or sale and (y) a fraction, (I) the numerator of which shall be the sum of (x) the product of (1) the number of shares of Common Stock outstanding (on a Fully Diluted Basis) immediately prior to such issuance or sale and (2) the Fair Market Value of one share of Common Stock as of the date of such issuance or sale plus (y) the aggregate consideration, if any, received by the Issuer upon such issuance or sale, and (II) the denominator of which shall be the product of (x) the number of shares of Common Stock outstanding (on a Fully Diluted Basis) immediately after such issuance or sale (prior to any adjustment pursuant to clause (ii) below) and (y) the Fair Market Value for one share of Common Stock immediately prior to such issuance or sale; provided, that in no event shall such adjustment result in an Exercise Price per share which is less than the par value per Warrant Share. (ii) The number of Warrant Shares issuable upon exercise of such Warrant shall be increased by multiplying the number of Warrant Shares issuable upon exercise of such Warrant immediately prior to such issuance or sale by a fraction (x) the numerator of which shall be the Exercise Price in effect immediately prior to the adjustment in Section 5.3(a)(i) and (y) the denominator of which shall be the Exercise Price in effect immediately after such adjustment.

Issuances Below Fair Market Value. If, at any time after the Closing Date and prior to a Public Market Issuance, the Issuer shall issue or sell (or, in accordance with Section 5.3(b), shall be deemed to have issued or sold) any shares of Common Stock (other than any issuance for which an adjustment is made pursuant to Section 5.2 or 5.4 or no adjustment is required pursuant to Section 5.9(d5.8(d)) without consideration or for a consideration per share less SF1:761466 10 than the Fair Market Value for such Common Stock determined as of the date of such issuance or sale, then, effective immediately upon such issuance or sale, the Exercise Price and the number of Warrant Shares issuable upon exercise of each Warrant shall be adjusted as follows: (i) The Exercise Price shall be reduced to an amount equal to the product of (x) the Exercise Price in effect immediately prior to such issuance or sale and (y) a fraction, (I) the numerator of which shall be the sum of (x) the product of (1) the number of shares of Common Stock outstanding (on a Fully Diluted Basis) immediately prior to such issuance or sale and (2) the Fair Market Value of one share of Common Stock as of the date of such issuance or sale plus (y) the aggregate consideration, if any, received by the Issuer upon such issuance or sale, and (II) the denominator of which shall be the product of (x) the number of shares of Common Stock outstanding (on a Fully Diluted Basis) immediately after such issuance or sale (prior to any adjustment pursuant to clause (ii) below) and (y) the Fair Market Value for one share of Common Stock immediately prior to such issuance or sale; provided, that in no event shall such adjustment result in an Exercise Price per share which is less than the par value per Warrant Share. (ii) The number of Warrant Shares issuable upon exercise of such Warrant shall be increased by multiplying the number of Warrant Shares issuable upon exercise of such Warrant immediately prior to such issuance or sale by a fraction (x) the numerator of which shall be the Exercise Price in effect immediately prior to the adjustment in Section 5.3(a)(i) and (y) the denominator of which shall be the Exercise Price in effect immediately after such adjustment.

Issuances Below Fair Market Value. If, at any time after the Closing Date and prior to a Public Market Issuance, the Issuer shall issue or sell (or, in accordance with Section 5.3(b), shall be deemed to have issued or sold) any shares of Common Stock (other than any issuance for which an adjustment is made pursuant to Section 5.2 or 5.4 or no adjustment is required pursuant to Section 5.9(d)) without consideration or for a consideration per share less SF1:761466 SF1:761432 10 than the Fair Market Value for such Common Stock determined as of the date of such issuance or sale, then, effective immediately upon such issuance or sale, the Exercise Price and the number of Warrant Shares issuable upon exercise of each Warrant shall be adjusted as follows: (i) The Exercise Price shall be reduced to an amount equal to the product of (x) the Exercise Price in effect immediately prior to such issuance or sale and (y) a fraction, (I) the numerator of which shall be the sum of (x) the product of (1) the number of shares of Common Stock outstanding (on a Fully Diluted Basis) immediately prior to such issuance or sale and (2) the Fair Market Value of one share of Common Stock as of the date of such issuance or sale plus (y) the aggregate consideration, if any, received by the Issuer upon such issuance or sale, and (II) the denominator of which shall be the product of (x) the number of shares of Common Stock outstanding (on a Fully Diluted Basis) immediately after such issuance or sale (prior to any adjustment pursuant to clause (ii) below) and (y) the Fair Market Value for one share of Common Stock immediately prior to such issuance or sale; provided, that in no event shall such adjustment result in an Exercise Price per share which is less than the par value per Warrant Share. (ii) The number of Warrant Shares issuable upon exercise of such Warrant shall be increased by multiplying the number of Warrant Shares issuable upon exercise of such Warrant immediately prior to such issuance or sale by a fraction (x) the numerator of which shall be the Exercise Price in effect immediately prior to the adjustment in Section 5.3(a)(i) and (y) the denominator of which shall be the Exercise Price in effect immediately after such adjustment.

Issuances Below Fair Market Value. If, at any time after If the Closing Date and prior to a Public Market Issuance, the Issuer shall issue or sell Company issues (or, in accordance with Section 5.3(b), shall be deemed to have issued or sold) any shares of Common Stock (other than any issuance for which an adjustment is made pursuant to Section 5.2 or 5.4 or no adjustment 5(c)(iii) below, is required pursuant deemed to Section 5.9(d)issue) without consideration or any Common Stock except for Excluded Stock (as defined below) for a consideration per share less SF1:761466 10 than the Fair Market Value on the date the Company fixes the purchase price for such Common Stock determined as of the date of such issuance (excluding stock dividends, subdivisions, split-ups, combinations or salerecapitalizations which are addressed by Section 5(b) or (e)), then, effective immediately upon such issuance or sale, the Exercise Price and the number of Warrant Shares issuable upon exercise of each Warrant shall be adjusted as follows: (i) The Exercise Price shall be reduced to an amount equal to the product of (x) the Exercise Price in effect immediately after each such issuance will be reduced, concurrently with such issuance, to a price determined by multiplying the applicable Exercise Price immediately prior to such issuance or sale and (y) by a fraction, (I) the numerator of which shall be is the sum of (x) the product of (1) the number of shares of Common Stock outstanding (on a Fully Diluted Basis) Outstanding immediately prior to such issuance (or sale and (2deemed issuance) plus the number of shares of Common Stock which the aggregate consideration received by the Company for such issuance would purchase at such Fair Market Value per share, and the denominator of one share which is the number of shares of Common Stock as Outstanding immediately after such issuance (or deemed issuance), including the shares of Common Stock, if any, deemed to have been issued pursuant to Section 5(c)(iii) below. For the purposes of any adjustment of the date Exercise Price pursuant to this Section 5(c), the following provisions are applicable: (i) In the case of the issuance of Common Stock for cash, the consideration is the amount of cash paid for such Common Stock after deducting any discounts or commissions paid or incurred by the Company in connection with the issuance and sale thereof. (ii) In the case of the issuance of Common Stock for a consideration in whole or sale plus in part other than cash, the consideration other than cash is the fair value thereof as determined in good faith by the Board of Directors. (yiii) In the case of the issuance of (A) options to purchase or rights to subscribe for Common Stock, (B) securities, by their terms, convertible into or exchangeable for Common Stock, (C) options to purchase or rights to subscribe for securities, by their terms, convertible into or exchangeable for Common Stock, or (D) stock appreciation rights, phantom stock, or other stock-based compensation mechanisms ("SARs"): (1) the aggregate considerationmaximum number of shares of Common Stock deliverable upon exercise of such options to purchase or rights to subscribe for Common Stock or, in the case of SARs, the number of shares of Common Stock upon which the value of the SARs are based, shall be deemed to have been issued at the time such options or rights were issued and for a consideration equal to the consideration (determined in the manner provided in subdivisions (i) and (ii) above of this Section 5(c)), if any, received by the Issuer Company upon the issuance of such issuance options or salerights plus the minimum purchase price provided in such options or rights for the Common Stock covered thereby; (2) the aggregate maximum number of shares of Common Stock deliverable upon conversion of or in exchange for any such convertible or exchangeable securities, or upon the exercise of options to purchase or rights to subscribe for such convertible or exchangeable securities and subsequent conversion or exchange thereof, shall be deemed to have been issued at the time such securities were issued or such options or rights were issued and for a consideration equal to the consideration received by the Company for any such securities and related options or rights (excluding any cash received on account of accrued interest or accrued dividends), plus the additional minimum consideration, if any, to be received by the Company upon the conversion or exchange of such securities or the exercise of any related options or rights (the consideration in each case to be determined in the manner provided in subdivisions (i) and (IIii) the denominator above of which shall be the product of this Section 5(c)); (x3) on any change in the number of shares of Common Stock outstanding deliverable upon exercise of any such options or rights or conversion of or exchange for such convertible or exchangeable securities, or on any change in the minimum purchase price of such options, rights or securities, other than a change resulting from the antidilution provisions of such options, rights or securities, the Exercise Price will be readjusted to such Exercise Price as would have been obtained had the adjustment made upon (on a Fully Diluted Basisa) immediately after the issuance of such issuance options, rights or sale (securities not exercised, converted or exchanged prior to any adjustment pursuant to clause such change or (ii) below) and (yb) the Fair Market Value for one share options or rights related to such securities not converted or exchanged prior to such change, as the case may be, been made upon the basis of such change; and (4) on the expiration of any such options or rights, the termination of any such rights to convert or exchange or the expiration of any options or rights related to such convertible or exchangeable securities, the Exercise Price will be readjusted to such Exercise Price as would have been obtained had the adjustment made upon the issuance of such options, rights, convertible or exchangeable securities or options or rights related to such convertible or exchangeable securities, as the case may be, been made upon the basis of the issuance of only the number of shares of Common Stock immediately prior to such issuance or sale; provided, that in no event shall such adjustment result in an Exercise Price per share which is less than actually issued upon the par value per Warrant Share. (ii) The number of Warrant Shares issuable upon exercise of such Warrant shall be increased by multiplying options or rights, upon the number conversion or exchange of Warrant Shares issuable such convertible or exchangeable securities or upon the exercise of such Warrant immediately prior the options or rights related to such issuance convertible or sale by a fraction (x) exchangeable securities, as the numerator of which shall be the Exercise Price in effect immediately prior to the adjustment in Section 5.3(a)(i) and (y) the denominator of which shall be the Exercise Price in effect immediately after such adjustmentcase may be.

Issuances Below Fair Market Value. If, at any time after the Closing Effective Date and prior to a Public Market Issuance, the Issuer shall issue or sell (or, in accordance with Section 5.3(b), shall be deemed to have issued or sold) any shares of Common Stock (other than any issuance for which an adjustment is made pursuant to Section 5.2 or 5.4 or no adjustment is required pursuant to Section 5.9(d)) without consideration or for a consideration per share less SF1:761466 10 than the Fair Market Value for such Common Stock determined as of the date of such issuance or sale, then, effective immediately upon such issuance or sale, the Exercise Price and the number of Warrant Shares issuable upon exercise of each Warrant shall be adjusted as follows: (i) The Exercise Price shall be reduced to an amount equal to the product of (x) the Exercise Price in effect immediately prior to such issuance or sale and (y) a fraction, (I) the numerator of which shall be the sum of (x) the product of (1) the number of shares of Common Stock outstanding (on a Fully Diluted Basis) immediately prior to such issuance or sale and (2) the Fair Market Value of one share of Common Stock as of the date of such issuance or sale plus (y) the aggregate consideration, if any, received by the Issuer upon such issuance or sale, and (II) the denominator of which shall be the product of (x) the number of shares of Common Stock outstanding (on a Fully Diluted Basis) immediately after such issuance or sale (prior to any adjustment pursuant to clause (ii) below) and (y) the Fair Market Value for one share of Common Stock immediately prior to such issuance or sale; provided, that in no event shall such adjustment result in an Exercise Price per share which is less than the par value per Warrant Share. (ii) The number of Warrant Shares issuable upon exercise of such Warrant shall be increased by multiplying the number of Warrant Shares issuable upon exercise of such Warrant immediately prior to such issuance or sale by a fraction (x) the numerator of which shall be the Exercise Price in effect immediately prior to the adjustment in Section 5.3(a)(i) and (y) the denominator of which shall be the Exercise Price in effect immediately after such adjustment.