Common use of Issuances Below Market Clause in Contracts

Issuances Below Market. In case the Company after the date hereof shall fix a record date of the issuance of rights or warrants to all holders of its shares of Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the Closing Price per share on the record date for the determination of stockholders entitled to receive such rights or warrants, the Exercise Price in effect at the opening of business on the day following such record date shall be adjusted to a price obtained by multiplying such Exercise Price by a fraction of which (x) the numerator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares of Common Stock that the aggregate offering price of the total number of shares to be offered would purchase at such Closing Price and (y) the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of additional shares of Common Stock to be offered for subscription or purchase, such adjustment to become effective immediately prior to the opening of business on the day following such record date; provided, however, that no adjustment shall be made if the Company issues or distributes to each Holder the rights or warrants that each Holder would have been entitled to receive had the Warrants held by such Holder been exercised prior to such record date. The Company shall not issue any rights or warrants in respect of shares of Common Stock held in the treasury of the Company.

Issuances Below Market. In case the Company after the date hereof shall fix a record date of the issuance of issue rights or warrants to all holders of its shares of Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the Closing Price per share on the record date for the determination of stockholders entitled to receive such rights or warrants, the Exercise Price in effect at the opening of business on the day following such record date shall be adjusted to a price obtained by multiplying such Exercise Price by a fraction of which (x) the numerator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares of Common Stock that the aggregate offering price of the total number of shares so to be offered would purchase at such Closing Price and (y) the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of additional shares of Common Stock so to be offered for subscription or purchase, such adjustment to become effective immediately prior to after the opening of business on the day following such record date; provided, however, that no adjustment shall be made if the Company issues or distributes to each Holder Warrantholder the rights or warrants that each Holder Warrantholder would have been entitled to receive had the Warrants held by such Holder Warrantholder been exercised prior to such record date; and provided, further, that in no event shall the fact that the Series B Warrants of the Company become exercisable for shares of Common Stock upon occurrence of the Shareholder Approval (as defined in the Investment Agreement) constitute an issuance of rights or warrants pursuant to this Section 9.1(c). For purposes of this subsection (c), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall not issue any rights or warrants in respect of shares of Common Stock held in the treasury of the Company. Rights or warrants issued by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase Equity Securities, which rights or warrants (i) are deemed to be transferred with such shares of Common Stock, (ii) are not exercisable and (iii) are also issued in respect of future issuances of Common Stock, including shares of Common Stock issued upon exercise of the Warrants evidenced by this Warrant Certificate, in each case in clauses (i) through (iii) until the occurrence of a specified event or events (a "Trigger Event"), shall for purposes of this subsection (c) not be deemed issued until the occurrence of the earliest Trigger Event.

Issuances Below Market. In case the Company Corporation after the date hereof shall fix a record date of the original issuance of the Series A Preferred Stock shall issue rights or warrants to all holders of its shares of Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the Closing Price per share on the record date for the determination of stockholders entitled to receive such rights or warrants, the Exercise Conversion Price in effect at the opening of business on the day following such record date shall be adjusted to a price obtained by multiplying such Exercise Conversion Price by a fraction of which (x) the numerator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus PLUS the number of shares of Common Stock that the aggregate offering price of the total number of shares so to be offered would purchase at such Closing Price and (y) the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus PLUS the number of additional shares of Common Stock so to be offered for subscription or purchase, such adjustment to become effective immediately prior to after the opening of business on the day following such record date; providedPROVIDED, howeverHOWEVER, that no adjustment shall be made if the Company Corporation issues or distributes to each Holder holder of Series A Preferred Stock the rights or warrants that each Holder such holder would have been entitled to receive had the Warrants Series A Preferred Stock held by such Holder holder been exercised converted prior to such record date. For purposes of this subsection (c), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Corporation but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company Corporation shall not issue any rights or warrants in respect of shares of Common Stock held in the treasury of the CompanyCorporation. Rights or warrants issued by the Corporation to all holders of Common Stock entitling the holders thereof to subscribe for or purchase Equity Securities, which rights or warrants (i) are deemed to be transferred with such shares of Common Stock, (ii) are not exercisable and (iii) are also issued in respect of future issuances of Common Stock, including shares of Common Stock issued upon conversion of shares of Series A Preferred Stock, in each case in clauses (i) through (iii) until the occurrence of a specified event or events (a "TRIGGER EVENT"), shall for purposes of this subsection (c) not be deemed issued until the occurrence of the earliest Trigger Event.

Issuances Below Market. In case the Company Corporation after the date hereof shall fix a record date of the original issuance of the Series A Preferred Stock shall issue rights or warrants to all holders of its shares of Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the Closing Price per share on the record date for the determination of stockholders entitled to receive such rights or warrants, the Exercise Conversion Price in effect at the opening of business on the day following such record date shall be adjusted to a price obtained by multiplying such Exercise Conversion Price by a fraction of which (x) the numerator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus PLUS the number of shares of Common Stock that the aggregate offering price of the total number of shares so to be offered would purchase at such Closing Price and (y) the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus PLUS the number of additional shares of Common Stock so to be offered for subscription or purchase, such adjustment to become effective immediately prior to after the opening of business on the day following such record date; providedPROVIDED, howeverHOWEVER, that no adjustment shall be made if the Company Corporation issues or distributes to each Holder holder of Series B Preferred Stock the rights or warrants that each Holder such holder would have been entitled to receive had the Warrants Series B Preferred Stock held by such Holder holder been exercised converted prior to such record date. For purposes of this subsection (c), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Corporation but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company Corporation shall not issue any rights or warrants in respect of shares of Common Stock held in the treasury of the CompanyCorporation. Rights or warrants issued by the Corporation to all holders of Common Stock entitling the holders thereof to subscribe for or purchase Equity Securities, which rights or warrants (i) are deemed to be transferred with such shares of Common Stock, (ii) are not exercisable and (iii) are also issued in respect of future issuances of Common Stock, including shares of Common Stock issued upon conversion of shares of Series B Preferred Stock, in each case in clauses (i) through (iii) until the occurrence of a specified event or events (a "TRIGGER EVENT"), shall for purposes of this subsection (c) not be deemed issued until the occurrence of the earliest Trigger Event.

Issuances Below Market. In case the Company Corporation after the date hereof shall fix a record date of the original issuance of the Series A Preferred Stock shall issue rights or warrants to all holders of its shares of Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the Closing Price per share on the record date for the determination of stockholders entitled to receive such rights or warrants, the Exercise Conversion Price in effect at the opening of business on the day following such record date shall be adjusted to a price obtained by multiplying such Exercise Conversion Price by a fraction of which (x) the numerator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares of Common Stock that the aggregate offering price of the total number of shares so to be offered would purchase at such Closing Price and (y) the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of additional shares of Common Stock so to be offered for subscription or purchase, such adjustment to become effective immediately prior to after the opening of business on the day following such record date; provided, however, that no adjustment shall be made if the Company Corporation issues or distributes to each Holder holder of Series A Preferred Stock the rights or warrants that each Holder such holder would have been entitled to receive had the Warrants Series A Preferred Stock held by such Holder holder been exercised converted prior to such record date. For purposes of this subsection (c), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Corporation but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company Corporation shall not issue any rights or warrants in respect of shares of Common Stock held in the treasury of the CompanyCorporation. Rights or warrants issued by the Corporation to all holders of Common Stock entitling the holders thereof to subscribe for or purchase Equity Securities, which rights or warrants (i) are deemed to be transferred with such shares of Common Stock, (ii) are not exercisable and (iii) are also issued in respect of future issuances of Common Stock, including shares of Common Stock issued upon conversion of shares of Series A Preferred Stock, in each case in clauses (i) through (iii) until the occurrence of a specified event or events (a "Trigger Event"), shall for purposes of this subsection (c) not be deemed issued until the occurrence of the earliest Trigger Event.

Issuances Below Market. In case the Company Corporation after the date hereof shall fix a record date of the original issuance of the Series A Preferred Stock shall issue rights or warrants to all holders of its shares of Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the Closing Price per share on the record date for the determination of stockholders entitled to receive such rights or warrants, the Exercise Conversion Price in effect at the opening of business on the day following such record date shall be adjusted to a price obtained by multiplying such Exercise Conversion Price by a fraction of which (x) the numerator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares of Common Stock that the aggregate offering price of the total number of shares so to be offered would purchase at such Closing Price and (y) the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of additional shares of Common Stock so to be offered for subscription or purchase, such adjustment to become effective immediately prior to after the opening of business on the day following such record date; provided, however, that no adjustment shall be made if the Company Corporation issues or distributes to each Holder holder of Series B Preferred Stock the rights or warrants that each Holder such holder would have been entitled to receive had the Warrants Series B Preferred Stock held by such Holder holder been exercised converted prior to such record date. For purposes of this subsection (c), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Corporation but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company Corporation shall not issue any rights or warrants in respect of shares of Common Stock held in the treasury of the CompanyCorporation. Rights or warrants issued by the Corporation to all holders of Common Stock entitling the holders thereof to subscribe for or purchase Equity Securities, which rights or warrants (i) are deemed to be transferred with such shares of Common Stock, (ii) are not exercisable and (iii) are also issued in respect of future issuances of Common Stock, including shares of Common Stock issued upon conversion of shares of Series B Preferred Stock, in each case in clauses (i) through (iii) until the occurrence of a specified event or events (a "Trigger Event"), shall for purposes of this subsection (c) not be deemed issued until the occurrence of the earliest Trigger Event.

Issuances Below Market. In case the Company after the date hereof shall fix a record date of the issuance of issue rights or warrants to all holders of its shares of Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the Closing Price per share on the record date for the determination of stockholders entitled to receive such rights or warrants, the Exercise Price in effect at the opening of business on the day following such record date shall be adjusted to a price obtained by multiplying such Exercise Price by a fraction of which (x) the numerator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares of Common Stock that the aggregate offering price of the total number of shares so to be offered would purchase at such Closing Price and (y) the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of additional shares of Common Stock so to be offered for subscription or purchase, such adjustment to become effective immediately prior to after the opening of business on the day following such record date; provided, however, that no adjustment shall be made if the Company issues or distributes to each Holder Warrantholder the rights or warrants that each Holder Warrantholder would have been entitled to receive had the Warrants held by such Holder Warrantholder been exercised prior to such record date; and provided, further, that in no event shall the fact that the Series B Warrants of the Company became exercisable for shares of Common Stock upon occurrence of the Shareholder Approval (as defined in the Investment Agreement) constitute an issuance of rights or warrants for purposes of this subsection (c). For purposes of this subsection (c), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall not issue any rights or warrants in respect of shares of Common Stock held in the treasury of the Company. Rights or warrants issued by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase Equity Securities, which rights or warrants (i) are deemed to be transferred with such shares of Common Stock, (ii) are not exercisable and (iii) are also issued in respect of future issuances of Common Stock, including shares of Common Stock issued upon exercise of the Warrants evidenced by this Warrant Certificate, in each case in clauses (i) through (iii) until the occurrence of a specified event or events (a "Trigger Event"), shall for purposes of this subsection (c) not be deemed issued until the occurrence of the earliest Trigger Event.

Issuances Below Market. In case the Company after the date hereof shall fix a record date of the issuance of issue rights or warrants to all holders of its shares of Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the Closing Price per share on the record date for the determination of stockholders entitled to receive such rights or warrants, the Exercise Price in effect at the opening of business on the day following such record date shall be adjusted to a price obtained by multiplying such Exercise Price by a fraction of which (x) the numerator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares of Common Stock that the aggregate offering price of the total number of shares so to be offered would purchase at such Closing Price and (y) the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of additional shares of Common Stock so to be offered for subscription or purchase, such adjustment to become effective immediately prior to after the opening of business on the day following such record date; provided, however, that no adjustment shall be made if the Company issues or distributes to each Holder Warrantholder the rights or warrants that each Holder Warrantholder would have been entitled to receive had the Warrants held by such Holder Warrantholder been exercised prior to such record date; and provided, further, that in no event shall the fact that the Warrants become exercisable for shares of Common Stock upon occurrence of the Shareholder Approval constitute an 9 124 issuance of rights or warrants pursuant to this Section 9.1(c). For purposes of this subsection (c), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall not issue any rights or warrants in respect of shares of Common Stock held in the treasury of the Company. Rights or warrants issued by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase Equity Securities, which rights or warrants (i) are deemed to be transferred with such shares of Common Stock, (ii) are not exercisable and (iii) are also issued in respect of future issuances of Common Stock, including shares of Common Stock issued upon exercise of the Warrants evidenced by this Warrant Certificate, in each case in clauses (i) through (iii) until the occurrence of a specified event or events (a "Trigger Event"), shall for purposes of this subsection (c) not be deemed issued until the occurrence of the earliest Trigger Event.

Issuances Below Market. In case the Company after the date hereof shall fix a record date of the issuance of issue rights or warrants to all holders of its shares of Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the Closing Market Price per share on the record date for (or, if applicable, the determination of stockholders entitled to receive such rights or warrantsex-distribution date) mentioned below, the Exercise Price in effect at the opening of business on the day following such record date immediately prior thereto shall be adjusted to a price obtained by multiplying such Exercise Price by a fraction of which (x) the numerator shall be the number of shares of Common Stock outstanding at on the close date of business on issuance of such record date rights or warrants plus the number of shares of Common Stock that the aggregate offering price of the total number of shares so to be offered would purchase at the Market Price on such Closing Price date and (y) the denominator shall be the number of shares of Common Stock outstanding at on the close date of business on issuance of such record date rights or warrants plus the number of additional shares of Common Stock to be offered for subscription or purchase, such adjustment to become effective immediately prior to the opening of business on the day following such record date; provided, however, that no adjustment shall be made if the Company issues or distributes to each Holder the rights or warrants that each Holder would have been entitled to receive had the Warrants held by such Holder been exercised prior to the record date mentioned below. Any such record date. The Company adjustments shall not issue any be made whenever such rights or warrants in respect are issued and shall become effective retroactively immediately after the record date for the determination of shares of Common Stock held in the treasury of the Companystockholders entitled to receive such rights or warrants.

Issuances Below Market. In case the Company after the date hereof shall fix a record date of the issuance of issue rights or warrants to all holders of its shares of Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the Closing Price per share on the record date for the determination of stockholders entitled to receive such rights or warrants, the Exercise Price in effect at the opening of business on the day following such record date shall be adjusted to a price obtained by multiplying such Exercise Price by a fraction of which (x) the numerator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares of Common Stock that the aggregate offering price of the total number of shares so to be offered would purchase at such Closing Price and (y) the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of additional shares of Common Stock so to be offered for subscription or purchase, such adjustment to become effective immediately prior to after the opening of business on the day following such record date; provided, however, that no adjustment shall be made if the Company issues or distributes to each Holder Warrantholder the rights or warrants that each Holder Warrantholder would have been entitled to receive had the Warrants held by such Holder Warrantholder been exercised prior to such record date; and provided, further, that in no event shall the fact that the Warrants become exercisable for shares of Common Stock upon occurrence of the Shareholder Approval constitute an issuance of rights or warrants pursuant to this Section 9.1(c). For purposes of this subsection (c), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall not issue any rights or warrants in respect of shares of Common Stock held in the treasury of the Company. Rights or warrants issued by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase Equity Securities, which rights or warrants (i) are deemed to be transferred with such shares of Common Stock, (ii) are not exercisable and (iii) are also issued in respect of future issuances of Common Stock, including shares of Common Stock issued upon exercise of the Warrants evidenced by this Warrant Certificate, in each case in clauses (i) through (iii) until the occurrence of a specified event or events (a "Trigger Event"), shall for purposes of this subsection (c) not be deemed issued until the occurrence of the earliest Trigger Event.

Issuances Below Market. In case the Company Corporation after the date hereof shall fix a record date of the original issuance of the Series A Preferred Stock shall issue rights or warrants to all holders of its shares of Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the Closing Price per share on the record date for the determination of stockholders entitled to receive such rights or warrants, the Exercise Conversion Price in effect at the opening of business on the day following such record date shall be adjusted to a price obtained by multiplying such Exercise Conversion Price by a fraction of which (x) the numerator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus PLUS the number of shares of Common Stock that the aggregate offering price of the total number of shares so to be offered would purchase at such Closing Price and (y) the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus PLUS the number of additional shares of Common Stock so to be offered for subscription or purchase, such adjustment to become effective immediately prior to after the opening of business on the day following such record date; provided, however, that no adjustment shall be made if the Company Corporation issues or distributes to each Holder holder of Series B Preferred Stock the rights or warrants that each Holder such holder would have been entitled to receive had the Warrants Series B Preferred Stock held by such Holder holder been exercised converted prior to such record date. For purposes of this subsection (c), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Corporation but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company Corporation shall not issue any rights or warrants in respect of shares of Common Stock held in the treasury of the CompanyCorporation. Rights or warrants issued by the Corporation to all holders of Common Stock entitling the holders thereof to subscribe for or purchase Equity Securities, which rights or warrants (i) are deemed to be transferred with such shares of Common Stock, (ii) are not exercisable and (iii) are also issued in respect of future issuances of Common Stock, including shares of Common Stock issued upon conversion of shares of Series B Preferred Stock, in each case in clauses (i) through (iii) until the occurrence of a specified event or events (a "Trigger Event"), shall for purposes of this subsection (c) not be deemed issued until the occurrence of the earliest Trigger Event.

Issuances Below Market. In case the Company Corporation after the date hereof shall fix a record date of the original issuance of the Series A Preferred Stock shall issue rights or warrants to all holders of its shares of Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the Closing Price per share on the record date for the determination of stockholders entitled to receive such rights or warrants, the Exercise Conversion Price in effect at the opening of business on the day following such record date shall be adjusted to a price obtained by multiplying such Exercise Conversion Price by a fraction of which (x) the numerator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares of Common Stock that the aggregate offering price of the total number of shares so to be offered would purchase at such Closing Price and (y) the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus PLUS the number of additional shares of Common Stock so to be offered for subscription or purchase, such adjustment to become effective immediately prior to after the opening of business on the day following such record date; provided, however, that no adjustment shall be made if the Company Corporation issues or distributes to each Holder holder of Series A Preferred Stock the rights or warrants that each Holder such holder would have been entitled to receive had the Warrants Series A Preferred Stock held by such Holder holder been exercised converted prior to such record date. For purposes of this subsection (c), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Corporation but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company Corporation shall not issue any rights or warrants in respect of shares of Common Stock held in the treasury of the CompanyCorporation. Rights or warrants issued by the Corporation to all holders of Common Stock entitling the holders thereof to subscribe for or purchase Equity Securities, which rights or warrants (i) are deemed to be transferred with such shares of Common Stock, (ii) are not exercisable and (iii) are also issued in respect of future issuances of Common Stock, including shares of Common Stock issued upon conversion of shares of Series A Preferred Stock, in each case in clauses (i) through (iii) until the occurrence of a specified event or events (a "TRIGGER EVENT"), shall for purposes of this subsection (c) not be deemed issued until the occurrence of the earliest Trigger Event.