Common use of Make-Whole Rights Clause in Contracts

Make-Whole Rights. If the Company shall, at any time or from time to time after the date hereof, but on or before the one year anniversary of the date hereof, issue or sell, agree to issue or sell, or be deemed to have issued or sold, any New Securities (as defined below), where the price per share paid upon purchase or exercise is, or resultant upon conversion into Common Stock (taking into account any and all warrants or other securities and other consideration issued in connection therewith when determining the value of such price per share; the “New Securities Share Price”) would be, less than One United States Dollar (US$1.00), then as a condition precedent to any such issuance or sale (or deemed issuance or sale), the Company shall, (i) in the event that the purchase contemplated by this Agreement has previously been completed, be required to issue to the Purchaser additional shares of Common Stock (the “Adjustment Shares”) such that the Purchaser, upon receipt of the Adjustment Shares, will have then received in aggregate the number of shares the Purchaser would have received hereunder if the price per share of Common Stock had been equal to the New Securities Share Price; or (ii) in the event that the purchase contemplated by this Agreement has not been completed, the purchase price for each share of Common Stock sold hereunder shall equal the New Securities Share Price. As used herein, “New Securities” means shares of the Common Stock, any other securities, options, warrants or other rights where upon exercise or conversion the purchaser or recipient receives shares of the Common Stock, or other securities with similar rights to the Common Stock, including without limitation pursuant to the exercise or conversion of any Company Securities. Within thirty (30) days of the sale or issuance of any such New Securities, the Company shall deliver to the Purchaser certificates evidencing any Adjustment Shares the Purchaser is entitled to pursuant to this Section 5, which Adjustment Shares shall be issued free and clear of any encumbrances, and the Company shall so represent and warrant to the Purchaser that such Adjustment Shares shall be, upon issuance thereof to the Purchaser, duly authorized, validly issued, fully paid and non-assessable. Each Party to the issuance of the Adjustment Shares shall take all such other actions as may be reasonably necessary to consummate the transfer including, without limitation, entering into such additional agreements as may be necessary or appropriate.

Make-Whole Rights. If Upon liquidation by the Company shallHolder of Conversion Shares issued pursuant to a Conversion Notice, at any time or provided that the Holder realizes a net amount from time such liquidation equal to time after less than the Conversion Amount specified in the relevant Conversion Notice (such net realized amount, the “Realized Amount”), the Borrower shall issue to the Holder additional shares of the Borrower’s Common Stock equal to: (i) the Conversion Amount specified in the relevant Conversion Notice; minus (ii) the Realized Amount, as evidenced by a reconciliation statement from the Holder (a “Sale Reconciliation”) showing the Realized Amount from the sale of the Conversion Shares; divided by (iii) the average volume weighted average price of the Borrower’s Common Stock during the five (5) Business Days immediately prior to the date hereofupon which the Holder delivers notice (the “Make-Whole Notice”) to the Borrower that such additional shares are requested by the Holder (the “Make-Whole Stock Price”) (such number of additional shares to be issued, but on or before the one year anniversary “Make-Whole Shares”). Upon receiving the Make-Whole Notice and Sale Reconciliation evidencing the number of Make-Whole Shares requested, the Borrower shall instruct its transfer agent to issue certificates representing the Make-Whole Shares, which Make Whole Shares shall be issued and delivered in the same manner and within the same time frames as set forth in Subsection (c)(ii) above. Subsections (c)(iii), (c)(iv), (c)(v) and (c)(vi) above shall be applicable to the issuance of the date hereofMake-Whole Shares. The Make-Whole Shares, issue or sellwhen issued, agree to issue or sell, or shall be deemed to have issued or soldbe validly issued, any New Securities (as defined below)fully paid, where and non-assessable shares of the price per share paid upon purchase or exercise is, or resultant upon conversion into Borrower’s Common Stock (taking into account any and all warrants or other securities and other consideration issued in connection therewith when determining Stock. Following the value sale of such price per share; the “New Securities Share Price”) would be, less than One United States Dollar (US$1.00), then as a condition precedent to any such issuance or sale (or deemed issuance or sale), Make-Whole Shares by the Company shall, Holder: (i) in the event that the purchase contemplated by this Agreement has previously been completedHolder receives net proceeds from such sale which, be required to issue when added to the Purchaser Realized Amount from the prior relevant Conversion Notice, is less than the Conversion Amount specified in the relevant Conversion Notice, the Holder shall deliver an additional shares of Common Stock (the “Adjustment Shares”) such that the Purchaser, upon receipt of the Adjustment Shares, will have then received in aggregate the number of shares the Purchaser would have received hereunder if the price per share of Common Stock had been equal Make-Whole Notice to the New Securities Share PriceBorrower following the procedures provided previously in this paragraph, and such procedures and the delivery of Make-Whole Notices shall continue until the Conversion Amount has been fully satisfied; or (ii) in the event that the purchase contemplated by this Agreement has not been completed, Holder received net proceeds from the purchase price for each share sale of Common Stock sold hereunder shall equal the New Securities Share Price. As used herein, “New Securities” means shares Make-Whole Shares in excess of the Common StockConversion Amount specified in the relevant Conversion Notice, such excess amount shall be applied to satisfy any other securities, options, warrants or other rights where upon exercise or conversion the purchaser or recipient receives shares and all amounts owed hereunder in excess of the Common Stock, or other securities with similar rights to Conversion Amount specified in the Common Stock, including without limitation pursuant to the exercise or conversion of any Company Securities. Within thirty (30) days of the sale or issuance of any such New Securities, the Company shall deliver to the Purchaser certificates evidencing any Adjustment Shares the Purchaser is entitled to pursuant to this Section 5, which Adjustment Shares shall be issued free and clear of any encumbrances, and the Company shall so represent and warrant to the Purchaser that such Adjustment Shares shall be, upon issuance thereof to the Purchaser, duly authorized, validly issued, fully paid and non-assessable. Each Party to the issuance of the Adjustment Shares shall take all such other actions as may be reasonably necessary to consummate the transfer including, without limitation, entering into such additional agreements as may be necessary or appropriaterelevant Conversion Notice.

Make-Whole Rights. If Upon liquidation by the Company shallLender of Conversion Shares issued pursuant to a Conversion Notice, at any time or provided that the Lender realizes a net amount from time such liquidation equal to time after less than the Conversion Amount specified in the relevant Conversion Notice (such net realized amount, the “Realized Amount”), the Borrower shall issue to the Lender additional shares of the Borrower’s Common Stock equal to: (i) the Conversion Amount specified in the relevant Conversion Notice; minus (ii) the Realized Amount, as evidenced by a reconciliation statement from the Lender (a “Sale Reconciliation”) showing the Realized Amount from the sale of the Conversion Shares; divided by (iii) the average volume weighted average price of the Borrower’s Common Stock during the five (5) Business Days immediately prior to the date hereofupon which the Lender delivers notice (the “Make-Whole Notice”) to the Borrower that such additional shares are requested by the Lender (the “Make-Whole Stock Price”) (such number of additional shares to be issued, but on or before the one year anniversary “Make-Whole Shares”). Upon receiving the Make-Whole Notice and Sale Reconciliation evidencing the number of Make-Whole Shares requested, the Borrower shall instruct its transfer agent to issue certificates representing the Make-Whole Shares, which Make whole Shares shall be issued and delivered in the same manner and within the same time frames as set forth in Subsection (c)(2) above. Subsections (c)(3), (c)(4), (c)(5) and (c)(6) above shall be applicable to the issuance of the date hereofMake-Whole Shares. The Make-Whole Shares, issue or sellwhen issued, agree to issue or sell, or shall be deemed to have issued or soldbe validly issued, any New Securities (as defined below)fully paid, where and non-assessable shares of the price per share paid upon purchase or exercise is, or resultant upon conversion into Borrower’s Common Stock (taking into account any and all warrants or other securities and other consideration issued in connection therewith when determining Stock. Following the value sale of such price per share; the “New Securities Share Price”) would be, less than One United States Dollar (US$1.00), then as a condition precedent to any such issuance or sale (or deemed issuance or sale), Make-Whole Shares by the Company shall, Lender: (i) in the event that the purchase contemplated by this Agreement has previously been completedLender receives net proceeds from such sale which, be required to issue when added to the Purchaser Realized Amount from the prior relevant Conversion Notice, is less than the Conversion Amount specified in the relevant Conversion Notice, the Lender shall deliver an additional shares of Common Stock (the “Adjustment Shares”) such that the Purchaser, upon receipt of the Adjustment Shares, will have then received in aggregate the number of shares the Purchaser would have received hereunder if the price per share of Common Stock had been equal Make-Whole Notice to the New Securities Share PriceBorrower following the procedures provided previously in this paragraph, and such procedures and the delivery of Make-Whole Notices shall continue until the Conversion Amount has been fully satisfied; or (ii) in the event that the purchase contemplated by this Agreement has not been completed, Lender received net proceeds from the purchase price for each share sale of Common Stock sold hereunder shall equal the New Securities Share Price. As used herein, “New Securities” means shares Make-Whole Shares in excess of the Common StockConversion Amount specified in the relevant Conversion Notice, such excess amount shall be applied to satisfy any other securities, options, warrants or other rights where upon exercise or conversion the purchaser or recipient receives shares and all amounts owed hereunder in excess of the Common Stock, or other securities with similar rights to Conversion Amount specified in the Common Stock, including without limitation pursuant to the exercise or conversion of any Company Securities. Within thirty (30) days of the sale or issuance of any such New Securities, the Company shall deliver to the Purchaser certificates evidencing any Adjustment Shares the Purchaser is entitled to pursuant to this Section 5, which Adjustment Shares shall be issued free and clear of any encumbrances, and the Company shall so represent and warrant to the Purchaser that such Adjustment Shares shall be, upon issuance thereof to the Purchaser, duly authorized, validly issued, fully paid and non-assessable. Each Party to the issuance of the Adjustment Shares shall take all such other actions as may be reasonably necessary to consummate the transfer including, without limitation, entering into such additional agreements as may be necessary or appropriaterelevant Conversion Notice.

Make-Whole Rights. If Upon liquidation by the Company shallHolder of Conversion Shares issued pursuant to a Conversion Notice, at any time or provided that the Holder realizes a net amount from time such liquidation equal to time after less than the date hereofConversion Amount specified in the relevant Conversion Notice (such net realized amount, but on or before the one year anniversary of the date hereof, issue or sell, agree to issue or sell, or be deemed to have issued or sold, any New Securities (as defined below), where the price per share paid upon purchase or exercise is, or resultant upon conversion into Common Stock (taking into account any and all warrants or other securities and other consideration issued in connection therewith when determining the value of such price per share; the “New Securities Share PriceRealized Amount”) would be, less than One United States Dollar (US$1.00), then as a condition precedent to any such issuance or sale (or deemed issuance or sale), the Company shallshall issue to the Holder additional shares of the Company’s Common Stock equal to: (i) the Conversion Amount specified in the relevant Conversion Notice; minus (ii) the Realized Amount, as evidenced by a reconciliation statement from the Holder (a “Sale Reconciliation”) showing the Realized Amount from the sale of the Conversion Shares; divided by (iii) the average volume weighted average price of the Company’s Common Stock during the five (5) Business Days immediately prior to the date upon which the Holder delivers notice (the “Make-Whole Notice”) to the Company that such additional shares are requested by the Holder (the “Make-Whole Stock Price”) (such number of additional shares to be issued, the “Make-Whole Shares”). Upon receiving the Make-Whole Notice and Sale Reconciliation evidencing the number of Make-Whole Shares requested, the Company shall instruct its transfer agent to issue certificates representing the Make-Whole Shares, which Make-Whole Shares shall be issued and delivered in the same manner and within the same time frames as set forth herein. The Make-Whole Shares, when issued, shall be deemed to be validly issued, fully paid, and non-assessable shares of the Company’s Common Stock. Following the sale of the Make-Whole Shares by the Holder: (i) in the event that the purchase contemplated by this Agreement has previously been completedHolder receives net proceeds from such sale which, be required to issue when added to the Purchaser Realized Amount from the prior relevant Conversion Notice, is less than the Conversion Amount specified in the relevant Conversion Notice, the Holder shall deliver an additional shares of Common Stock (the “Adjustment Shares”) such that the Purchaser, upon receipt of the Adjustment Shares, will have then received in aggregate the number of shares the Purchaser would have received hereunder if the price per share of Common Stock had been equal Make-Whole Notice to the New Securities Share PriceCompany following the procedures provided previously in this paragraph, and such procedures and the delivery of Make-Whole Notices and issuance of Make-Whole Shares shall continue until the Conversion Amount has been fully satisfied; or and (ii) in the event that the purchase contemplated by this Agreement has not been completed, Holder received net proceeds from the purchase price for each share sale of Common Stock sold hereunder shall equal the New Securities Share Price. As used herein, “New Securities” means shares Make-Whole Shares in excess of the Common StockConversion Amount specified in the relevant Conversion Notice, such excess amount shall be applied to satisfy any other securities, options, warrants or other rights where upon exercise or conversion the purchaser or recipient receives shares and all amounts owed hereunder in excess of the Common Stock, or other securities with similar rights to Conversion Amount specified in the Common Stock, including without limitation pursuant to the exercise or conversion of any Company Securities. Within thirty (30) days of the sale or issuance of any such New Securities, the Company shall deliver to the Purchaser certificates evidencing any Adjustment Shares the Purchaser is entitled to pursuant to this Section 5, which Adjustment Shares shall be issued free and clear of any encumbrances, and the Company shall so represent and warrant to the Purchaser that such Adjustment Shares shall be, upon issuance thereof to the Purchaser, duly authorized, validly issued, fully paid and non-assessable. Each Party to the issuance of the Adjustment Shares shall take all such other actions as may be reasonably necessary to consummate the transfer including, without limitation, entering into such additional agreements as may be necessary or appropriaterelevant Conversion Notice.

Make-Whole Rights. If the Company shall, at any time or from time to time after the date hereof, but on or before the one year anniversary of the date hereofDecember 31, 2012, issue or sell, agree to issue or sell, or be deemed to have issued or sold, any New Securities (as defined below), where the price per share paid upon purchase or exercise is, or resultant upon conversion into Common Stock (taking into account any and all warrants or other securities and other consideration issued in connection therewith when determining the value of such price per share; the “New Securities Share Price”) would be, less than One United States Dollar (US$1.00)the Share Price, then as a condition precedent to any such issuance or sale (or deemed issuance or sale), the Company shall, (i) in the event that the purchase contemplated by this Agreement has previously been completed, shall be required to issue to the Purchaser Subscriber additional shares of Common Stock (the “Adjustment Shares”) such that the PurchaserSubscriber, upon receipt of the Adjustment Shares, will have then received in aggregate the number of shares the Purchaser Subscriber would have received hereunder if the price per share of Common Stock had Share Price been equal to the New Securities Share Price; or (ii) in the event that the purchase contemplated by this Agreement has not been completed, the purchase price for each share of Common Stock sold hereunder shall equal the New Securities Share Price. As used herein, “New Securities” means shares of the Common Stock, any other securities, options, warrants or other rights where upon exercise or conversion the purchaser or recipient receives shares of the Common Stock, or other securities with similar rights to the Common Stock, including without limitation pursuant to the exercise or conversion of any Company Securities. Within thirty (30) days of the sale or issuance of any such New Securities, the Company shall deliver to the Purchaser Subscriber certificates evidencing any Adjustment Shares the Purchaser Subscriber is entitled to pursuant to this Section 5, which Adjustment Shares shall be issued free and clear of any encumbrancesEncumbrances, and the Company shall so represent and warrant to the Purchaser Subscriber that such Adjustment Shares shall be, upon issuance thereof to the PurchaserSubscriber, duly authorized, validly issued, fully paid and non-assessable. Each Party party to the issuance of the Adjustment Shares shall take all such other actions as may be reasonably necessary to consummate the transfer including, without limitation, entering into such additional agreements as may be necessary or appropriate. Notwithstanding anything contained herein, Subscriber shall not be entitled to Adjustment Shares in connection with the Company’s issuance of up to an aggregate of 1,500,000 shares of Common Stock pursuant to Section 4(a) hereof.