Common use of Net Issue Election Clause in Contracts

Net Issue Election. Notwithstanding any provisions herein to the contrary, the Holder may elect to receive, without the payment by the Holder of any additional consideration, shares of Common Stock equal to the value (as determined below) of this Warrant by the surrender of this Warrant to the Company, with the net issue election notice set forth in Appendix 1 annexed hereto duly executed, at the principal office of the Company. Thereupon, the Company shall issue to the Holder such number of fully paid and nonassessable shares of Common Stock as is computed using the following formula: X = Y(A-B) ------ A where: X = the number of shares of Common Stock to be issued to the Holder pursuant to this Section 4. Y = the number of shares of Common Stock covered by this Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being exercised at the time the net issue election is made pursuant to this Section 4. A = the fair market value of one share of Common Stock, determined as follows: (i) if at such time the Common Stock is listed on a national securities exchange or on the over-the-counter market, then the closing price of the Common Stock on the business day immediately prior to the date of exercise or, if no sale of the Common Stock was made on such day, the first business day immediately preceding such day upon which a sale was made, or (ii) if at such time the Common Stock is not listed on a national securities exchange or on the over-the-counter market, then as determined in good faith by the Board and agreed to by Holder at the time the net issue election is made pursuant to this Section 4. B = the Purchase Price in effect under this Warrant at the time the net issue election is made pursuant to this Section 4.

Net Issue Election. Notwithstanding any provisions herein to the contrary, the Holder may elect to receive, without the payment by the Holder of any additional consideration, shares of Common Stock equal to the value (as determined below) of this Warrant by the surrender of this Warrant to the Company, with the net issue election notice set forth in Appendix 1 annexed hereto duly executed, at the principal office of the Company. Thereupon, the Company shall issue to the Holder such number of fully paid and nonassessable shares of Common Stock as is computed using the following formula: X = Y(A-B) ------ ------- A where: X = the number of shares of Common Stock to be issued to the Holder pursuant to this Section 4. Y = the number of shares of Common Stock covered by this Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being exercised at the time the net issue election is made pursuant to this Section 4. A = the fair market value of one share of Common Stock, determined as follows: (i) if at such time the Common Stock is listed on a national securities exchange or on the over-the-counter market, then the closing price of the Common Stock on the business day immediately prior to the date of exercise or, if no sale of the Common Stock was made on such day, the first business day immediately preceding such day upon which a sale was made, or (ii) if at such time the Common Stock is not listed on a national securities exchange or on the over-the-counter market, then as determined in good faith by the Board and agreed to by Holder at the time the net issue election is made pursuant to this Section 4. B = the Purchase Price in effect under this Warrant at the time the net issue election is made pursuant to this Section 4.

Net Issue Election. Notwithstanding any provisions herein to the contrary, the The Holder may elect to receive, without the payment by the Holder of any additional consideration, shares of Common Stock equal to the value (as determined below) of this Warrant or any portion hereof by the surrender of this Warrant or such portion to the CompanyCompany (the “Net Exercise”), with the net issue election notice set forth initialed in Appendix 1 the Common Stock Purchase Warrant Exercise Form annexed hereto duly executed, at the principal office of the Company. Thereupon, the Company shall will issue to the Holder such number of fully paid and nonassessable shares of Common Stock of the Company as is computed using the following formula: X = X= Y(A-B) ------ A where: X = where X= the number of shares of Common Stock to be issued to the Holder pursuant to this Section 42(c). Y = Y= the number of shares of Common Stock covered by this Warrant or, if only a portion in respect of the Warrant is being exercised, the portion of the Warrant being exercised at the time which the net issue election is made pursuant to this Section 42(c). A = A= the fair market value of one share of Common Stock, determined as follows: : (i) if at such time If the Common Stock is listed on a national recognized securities exchange in the United States, Canada or the UK, or admitted to unlisted trading privileges on such exchange, the over-the-counter market, then fair market value shall be the closing last reported sale price of the Common Stock on such exchange or market on the last business day immediately prior to the date of the exercise or, of this Warrant or if no sale of the Common Stock was is made on such day, the first business day immediately preceding average closing bid and asked prices for such day upon which a sale was made, on such exchange or market; or (ii) if at such time If the Common Stock is not so listed or admitted to unlisted trading privileges, but is traded on a national securities exchange recognized trading system that provides closing bid and asked prices for securities, the fair market value shall be the average of the closing bid and asked prices for such day on such market; or (iii) If the Common Stock is not so listed or on admitted to unlisted trading privileges and bid and asked prices are not so reported, the over-the-counter market, then as fair market value shall be an amount determined in good faith such reasonable manner as may be prescribed by the Board and agreed to by Holder at of Directors of the time Company. B= the net issue election is made pursuant to this Section 4. B = the Purchase Exercise Price in effect under this Warrant at the time the net issue election is made pursuant to this Section 42(c). The Board will promptly respond in writing to an inquiry by the Holder as to the fair market value of one share of Common Stock.

Net Issue Election. Notwithstanding any provisions herein to the contrary, the The Holder may elect to receive, without the payment by the Holder of any additional consideration, shares of Common Stock equal to the value (as determined below) of this Warrant by the surrender of this Warrant to the Company, with the net issue election notice set forth in Appendix 1 Attachment A annexed hereto duly executed, at the principal office of the Company. Thereupon, the Company shall issue to the Holder such number of fully paid and nonassessable shares of Common Stock as is computed using the following formula: X = Y(A-B) X= ------ A where: X = the number of shares of Common Stock to be issued to the Holder pursuant to this Section 4. Y = the number of shares of Common Stock covered by this Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being exercised at the time the net issue election is made pursuant to this Section 4. A = the fair market value of one share of Common Stock, determined as follows: (i) if at such time the Common Stock is listed on a national securities exchange or on the over-the-counter market, then the closing price of the Common Stock on the business day immediately prior to the date of exercise or, if no sale of the Common Stock was made on such day, the first business day immediately preceding such day upon which a sale was made, or (ii) if at such time the Common Stock is not listed on a national securities exchange or on the over-the-counter market, then as determined in good faith by the Board and agreed to by Holder at the time the net issue election is made pursuant to this Section 4. B = the Purchase Price in effect under this Warrant at the time the net issue election is made pursuant to this Section 4.

Net Issue Election. Notwithstanding any provisions herein to the contrary, the The Holder may elect to receive, without the payment by the Holder of any additional consideration, shares of Common Stock equal to the value (as determined below) of this Warrant by the surrender of this Warrant to the Company, with the net issue election notice set forth in Appendix 1 Exhibit A annexed hereto duly executed, at the principal office of the Company. Thereupon, the Company shall issue to the Holder such number of fully paid and nonassessable shares of Common Stock as is computed using the following formula: Y(A - B) X = Y(A-B) ------ -------- A where: X = the number of shares of Common Stock to be issued to the Holder pursuant to this Section 4. Y = the number of shares of Common Stock covered by this Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being exercised at the time the net issue election is made pursuant to this Section 4. A = the fair market value of one share of Common Stock, determined as follows: (i) if the Warrant is being exercised in connection with an initial public offering of the Company's Common Stock pursuant to a registration statement filed under the Securities Act of 1933, as amended (an "Initial Public Offering"), then the per share offering price to the public in such Initial Public Offering, (ii) if at such time the Common Stock is listed on a national securities exchange or on the over-the-counter marketmarket and is not being exercised in connection with an Initial Public Offering, then the closing price of the Common Stock on the business day immediately prior to the date of exercise or, if no sale of the Common Stock was made on such day, the first business day immediately preceding such day upon which a sale was made, or (iiiii) if at such time the Common Stock is not listed on a national securities exchange or on the over-over- the-counter market, then as determined in good faith by the Board and agreed to by Holder at the time the net issue election is made pursuant to this Section 4. B = the Purchase Price in effect under this Warrant at the time the net issue election is made pursuant to this Section 4.

Net Issue Election. Notwithstanding any provisions herein to the contrary, the Holder The holder may elect to receive, without the payment by the Holder holder of any additional consideration, shares of Common Stock equal to the value (as determined below) of this Warrant or any portion hereof by the surrender of this Warrant or such portion to the Company, with the net issue election notice set forth in Appendix 1 annexed hereto duly executed, at the principal office of the Company. Thereupon, the Company shall issue to the Holder holder such number of fully paid and nonassessable shares of Common Stock as is computed using the following formula: X = Y(AY (A-B) ------ ------- A where: where X = the number of shares of Common Stock to be issued to the Holder holder pursuant to this Section 41.5. Y = the number of shares of Common Stock covered by this Warrant or, if only a portion in respect of the Warrant is being exercised, the portion of the Warrant being exercised at the time which the net issue election is made pursuant to this Section 41.5. A = the fair market value of one share of Common Stock, determined as follows: (i) if at such time the Common Stock is listed on a national securities exchange or on the over-the-counter market, then the closing price of the Common Stock on the business day immediately prior to the date of exercise or, if no sale of the Common Stock was made on such day, the first business day immediately preceding such day upon which a sale was made, or (ii) if at such time the Common Stock is not listed on a national securities exchange or on the over-the-counter market, then as determined in good faith by accordance with the Board and agreed to by Holder at the time the net issue election is made pursuant to provisions of this Section 41.5. B = the Purchase Price in effect under this Warrant at the time the net issue election is made pursuant to this Section 41.5. For purposes of this Section 1.5, the "fair market value" per share of the Company's Common Stock shall mean: (a) If the net issue election is exercised in connection with and contingent upon the Company's initial public offering, and if the Company's registration statement relating to such offering has been declared effective by the Securities and Exchange Commission, then the initial "Price to Public" specified in the final prospectus with respect to such offering; or (b) If the net issue election is not exercised in connection with and contingent upon the Company's initial public offering, then as follows: (1) If the Common Stock is traded on a national securities exchange or admitted to unlisted trading privileges on such an exchange, or is listed on the National Market (the "National Market") of the National Association of Securities Dealers Automated Quotations System (the "NASDAQ"), the fair market value shall be the last reported sale price of the Common Stock on such exchange or on the National Market on the last business day before the effective date of exercise of the net issue election or if no such sale is made on such day, the mean of the closing bid and asked prices for such day on such exchange or on the National Market; (2) If the Common Stock is not so listed or admitted to unlisted trading privileges, the fair market value shall be the mean of the last bid and asked prices reported on the last business day before the date of the election (1) by the NASDAQ or (2) if reports are unavailable under clause (1) above by the National Quotation Bureau Incorporated; and (3) If the Common Stock is not so listed or admitted to unlisted trading privileges and bid and ask prices are not reported, the fair market value shall be the price per share which the Company could obtain from a willing buyer for shares sold by the Company from authorized but unissued shares, as such price shall be determined by mutual agreement of the Company and the holder of this Warrant. If the holder of this Warrant and the Company are unable to agree on such fair market value, the holder of this Warrant shall select a pool of three independent and nationally-recognized investment banking firms from which the Company shall select one such firm to appraise the fair market value of the Warrant and to perform the computations involved. The determination of such investment banking firm shall be binding upon the Company, the holder of this Warrant or the shares of Common Stock purchasable hereunder in connection with any transaction occurring at the time of such determination. All expenses of such investment banking firm shall be borne by the holder of this Warrant. In all cases, the determination of fair market value shall be made without consideration of the lack of a liquid public market for the Common Stock and without consideration of any "control premium" or any discount for holding less than a majority or controlling interest of the outstanding Common Stock.

Net Issue Election. Notwithstanding any provisions herein to the contrary, the The Holder may elect to receive, without the payment by the Holder of any additional consideration, shares of Common Stock equal to the value (as determined below) of this Warrant by the surrender of this Warrant to the Company, with the net issue election notice set forth in Appendix 1 Attachment A annexed hereto duly executed, at the principal office of the Company. Thereupon, the Company shall issue to the Holder such number of fully paid and nonassessable shares of Common Stock as is computed using the following formula: X = Y(A-B) X = ------ A where: X = the number of shares of Common Stock to be issued to the Holder pursuant to this Section 4. Y = the number of shares of Common Stock covered by this Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being exercised at the time the net issue election is made pursuant to this Section 4. A = the fair market value of one share of Common Stock, determined as follows: (i) if at such time the Common Stock is listed on a national securities exchange or on the over-the-counter market, then the closing price of the Common Stock on the business day immediately prior to the date of exercise or, if no sale of the Common Stock was made on such day, the first business day immediately preceding such day upon which a sale was made, or (ii) if at such time the Common Stock is not listed on a national securities exchange or on the over-the-counter market, then as determined in good faith by the Board and agreed to by Holder at the time the net issue election is made pursuant to this Section 4. B = the Purchase Price in effect under this Warrant at the time the net issue election is made pursuant to this Section 4.

Net Issue Election. Notwithstanding any provisions herein to the contrary, the The Holder may elect to receive, without the payment by the Holder of any additional consideration, shares of Common Stock equal to the value (as determined below) of this Warrant or any portion hereof by the surrender of this Warrant or such portion to the Company, with the net issue election notice set forth in Appendix 1 annexed hereto duly executed, at the principal office of the Company. Thereupon, the Company shall issue to the Holder such number of fully paid and nonassessable shares of Common Stock as is computed using the following formula: X = Y(A-B) ------ A : 1. where: X = the number of shares of Common Stock to be issued to the Holder pursuant to this Section 4. Y = the number of shares of Common Stock covered by this Warrant or, if only a portion in respect of the Warrant is being exercised, the portion of the Warrant being exercised at the time which the net issue election is made pursuant to this Section 4. A = the fair market value Fair Market Value (defined below) of one share of Common Stock, determined as follows: (i) if at such time the Common Stock is listed on a national securities exchange or on the over-the-counter market, then the closing price of the Common Stock on the business day immediately prior to the date of exercise or, if no sale of the Common Stock was made on such day, the first business day immediately preceding such day upon which a sale was made, or (ii) if at such time the Common Stock is not listed on a national securities exchange or on the over-the-counter market, then as determined in good faith by the Board and agreed to by Holder at the time the net issue election is made pursuant to this Section 4. B = the Purchase Price in effect under this Warrant at the time the net issue election is made pursuant to this Section 4. “Fair Market Value” of a share of Common Stock as of the date that the net issue election is made (the “Determination Date”) shall mean: (i) If traded on a securities exchange or the Nasdaq National Market, the fair market value of the Common Stock shall be deemed to be the volume-weighted average of the closing or last reported sale prices of the Common Stock on such exchange or market over the ten day period ending ten trading days prior to the Determination Date; (b) If otherwise traded in an over-the-counter market, the fair market value of the Common Stock shall be deemed to be the average of the closing ask prices of the Common Stock over the five day period ending five trading days prior to the Determination Date; and (c) If there is no public market for the Common Stock, then fair market value shall be determined in good faith by the Company’s Board of Directors.

Net Issue Election. Notwithstanding any provisions herein to the contrary, the The Holder may elect to receive, without the ------------------ payment by the Holder of any additional consideration, shares of Common Stock equal to the value (as determined below) of this Warrant or any portion hereof by the surrender of this Warrant or such portion to the Company, with the net issue election notice set forth in Appendix 1 annexed hereto duly executed, at the principal office of the Company. Thereupon, the Company shall issue to the Holder such number of fully paid and nonassessable shares of Common Series D Preferred Stock as is computed using the following formula: X = Y(AY (A-B) ------ ------- A where: where X = the number of shares of Common Stock to be issued to the Holder pursuant to this Section 4. Y = the number of shares of Common Stock covered by this Warrant or, if only a portion in respect of the Warrant is being exercised, the portion of the Warrant being exercised at the time which the net issue election is made pursuant to this Section 4. A = the fair market value Fair Market Value (as defined below) of one share of Common Series D Preferred Stock, determined as follows: (i) if at such time the Common Stock is listed on a national securities exchange or on the over-the-counter market, then the closing price of the Common Stock on the business day immediately prior to the date of exercise or, if no sale of the Common Stock was made on such day, the first business day immediately preceding such day upon which a sale was made, or (ii) if at such time the Common Stock is not listed on a national securities exchange or on the over-the-counter market, then as determined in good faith by the Board and agreed to by Holder at the time the net issue election is made pursuant to this Section 4. B = the Purchase Price in effect under this Warrant at the time the net issue election is made pursuant to this Section 4. "Fair Market Value" of one share of Series D Preferred Stock shall mean: (a) if the Warrant is being exercised in connection with or subsequent to a transaction specified in Section 10 hereof, the value of the consideration (determined, in the case of noncash consideration, in good faith by the Board of Directors of the Company) to be received pursuant to such transaction by the holder of one share of Series D Preferred Stock; (b) if the Warrant is being exercised in connection with the IPO (as defined in Section 21(A)(i), the initial public offering price (before deducting commissions, discounts or expenses) at which the Common Stock is sold in such IPO; (c) if the Warrant is being exercised after the occurrence of the IPO: (i) if the Company's Common Stock is traded on an exchange or is quoted on the National Association of Securities Dealers, Inc. Automated Quotation ("NASDAQ") National Market System, the average of the closing or last sale price reported for the five (5) business days immediately preceding the date that the Net Issue Election Notice is delivered to the Company; (ii) if the Company's Common Stock is not traded on an exchange or on the NASDAQ National Market System, but is traded in the over-the-counter market, the mean of the closing bid and asked prices reported for the five (5) business days immediately preceding the date that the Net Issue Election Notice is delivered to the Company; and (d) in all other cases, the fair value as determined in good faith by the Company's Board of Directors. The Board shall promptly respond in writing to an inquiry by the Holder as to the fair market value of one share of Series D Preferred Stock.

Net Issue Election. Notwithstanding any provisions herein to the contrary, the Holder may elect to receive, without the payment by the Holder of any additional consideration, shares of Common Stock equal to the value (as determined below) of this Warrant by the surrender of this Warrant to the Company, with the net issue election notice set forth in Appendix 1 annexed hereto duly executed, at the principal office of the Company. Thereupon, the Company shall issue to the Holder such number of fully paid and nonassessable shares of Common Stock as is computed using the following formula: X = Y(A-B) ------ ----- A where: X = the number of shares of Common Stock to be issued to the Holder pursuant to this Section 4. Y = the number of shares of Common Stock covered by this Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being exercised at the time the net issue election is made pursuant to this Section 4. A = the fair market value of one share of Common Stock, determined as follows: (i) if at such time the Common Stock is listed on a national securities exchange or on the over-the-counter market, then the closing price of the Common Stock on the business day immediately prior to the date of exercise or, if no sale of the Common Stock was made on such day, the first business day immediately preceding such day upon which a sale was made, or (ii) if at such time the Common Stock is not listed on a national securities exchange or on the over-the-counter market, then as determined in good faith by the Board and agreed to by Holder at the time the net issue election is made pursuant to this Section 4. B = the Purchase Price in effect under this Warrant at the time the net issue election is made pursuant to this Section 4.