Common use of Share Issuances Clause in Contracts

Share Issuances. Subject to the provisions of this Section 3.6, if the Company shall at any time prior to the conversion or repayment in full of the Principal Amount issue any shares of Common Stock or securities convertible into Common Stock to a person other than the Holder (except (i) pursuant to Sections 3.6(a) or (b) above; (ii) pursuant to options, warrants, or other obligations to issue shares outstanding on the date hereof as disclosed to the Holder in writing; or (iii) pursuant to options that may be issued under any employee incentive stock option and/or any qualified stock option plan adopted by the Company) for a consideration per share (the "OFFER PRICE") less than the Fixed Conversion Price in effect at the time of such issuance, then the Fixed Conversion Price shall be immediately reset pursuant to the formula set forth below. For purposes hereof, the issuance of any security of the Company convertible into or exercisable or exchangeable for Common Stock shall result in an adjustment to the Fixed Conversion Price upon the issuance of such securities pursuant to the formula below. If the Company issues any additional shares of Common Stock for a consideration per share less than the then-applicable Fixed Conversion Price pursuant to this Section 3.6 then, and thereafter successively upon each such issue, the Fixed Conversion Price shall be adjusted by multiplying the then applicable Fixed Conversion Price by the following fraction: --------------------------------------- A + B --------------------------------------- (A + B) + [((C - D) x B) / C] --------------------------------------- A = Total amount of shares convertible pursuant to the Notes B = Actual shares sold in the offering C = Fixed Conversion Price D = Offer Price Such adjustment shall become effective immediately upon the earlier to occur of the date of issuance of such shares of Common Stock or the record date for the determination of stockholders entitled to receive the convertible securities, as the case may be.

Share Issuances. Subject to the provisions of this Section 3.63.4, if the Company Borrower shall at any time prior to the conversion or repayment in full of the Principal Amount issue any shares of Common Stock or securities convertible into Common Stock to a person other than the Holder or its affiliates (except (i) pursuant to Sections 3.6(a) Subsections A or (b) B above; (ii) pursuant to options, warrants, or other obligations to issue shares outstanding on the date hereof as disclosed to the Holder in writing; or (iii) pursuant to options that may be issued under any employee incentive stock option and/or any qualified stock option plan adopted approved by Borrower's Board of Directors, (iv) with respect to up to 1,000,000 shares of Common Stock (as calculated on the date hereof and appropriately adjusted for any subdivision, combination or similar event), so long as (x) such shares of Common Stock do not become freely tradeable (following the filing of an S-8 or otherwise) until such time as the initial Registration Statement referred to in the Registration Rights Agreement has been declared effective by the SEC and (y) no more than 200,000 of such shares of Common Stock are issued in any fiscal quarter of the Company, and (v) with respect to up to 2,000,000 shares of Common Stock (as calculated on the date hereof and appropriately adjusted for any subdivision, combination or similar event) so long as such shares are restricted and do not become freely or publicly traded in any respect prior to the two year anniversary of the issuance thereof) for a consideration per share (the "OFFER PRICEOffer Price") less than the Fixed Conversion Price in effect at the time of such issuance, then the Fixed Conversion Price shall be immediately reset pursuant to such lower Offer Price at the formula set forth belowtime of issuance of such securities. For purposes hereof, the issuance of any security of the Company Borrower convertible into or exercisable or exchangeable for Common Stock shall result in an adjustment to the Fixed Conversion Price upon at the issuance of such securities pursuant to the formula below. If the Company issues any additional shares of Common Stock for a consideration per share less than the then-applicable Fixed Conversion Price pursuant to this Section 3.6 then, and thereafter successively upon each such issue, the Fixed Conversion Price shall be adjusted by multiplying the then applicable Fixed Conversion Price by the following fraction: --------------------------------------- A + B --------------------------------------- (A + B) + [((C - D) x B) / C] --------------------------------------- A = Total amount of shares convertible pursuant to the Notes B = Actual shares sold in the offering C = Fixed Conversion Price D = Offer Price Such adjustment shall become effective immediately upon the earlier to occur of the date time of issuance of such shares of Common Stock or the record date for the determination of stockholders entitled to receive the convertible securities, as the case may be.

Share Issuances. Subject to the provisions of this Section 3.63.4, if the Company Borrower shall at any time prior to the conversion or repayment in full of the Principal Amount issue any shares of Common Stock or securities convertible into Common Stock to a person other than the Holder (except (i) pursuant to Sections 3.6(a) Subsections A or (b) B above; (ii) pursuant to options, warrants, or other obligations to issue shares outstanding on the date hereof as disclosed to the Holder in writing; or (iii) pursuant to options that may be issued under any employee incentive stock option and/or any qualified stock option plan adopted by the CompanyBorrower) for a consideration per share (the "OFFER PRICEOffer Price") less than the Fixed Conversion Price in effect at the time of such issuance (an such issuance, an "Offering"), then the Fixed Conversion Price shall be immediately reset to such lower Offer Price at the time of issuance of such securities pursuant to the formula set forth below. For purposes hereof, the issuance of any security of the Company Borrower convertible into or exercisable or exchangeable for Common Stock shall result in an adjustment to the Fixed Conversion Price upon at the time of issuance of such securities pursuant to the formula belowsecurities. If the Company Borrower issues any additional shares of Common Stock for a consideration per share less than the then-applicable Fixed Conversion Price pursuant to this Section 3.6 3.4 above then, and thereafter successively upon each such issue, the Fixed Conversion Price shall be adjusted by multiplying the then applicable Fixed Conversion Price by the following fraction: --------------------------------------- ---------------------------------------- | | | A + B --------------------------------------- | ---------------------------------------- | | | (A + B) + [((C - D) x B) / C] --------------------------------------- | ---------------------------------------- A = Total amount of shares convertible pursuant to this Note, the Notes Purchase Agreement and the Related Agreements. B = Actual shares sold in the offering Offering C = Fixed Conversion Price D = Offer Price Such adjustment shall become effective immediately upon the earlier to occur of the date of issuance of such shares of Common Stock or the record date for the determination of stockholders entitled to receive the convertible securities, as the case may be.Offering price

Share Issuances. Subject to the provisions of this Section 3.62.5, if the Company Borrower shall at any time (after the date hereof) prior to the conversion or repayment in full of the Principal Amount issue any shares of Common Stock or securities convertible into Common Stock to a person other than the Holder (except (i) pursuant to Sections 3.6(a) Subsections A, B or (b) C above; (ii) pursuant to options, warrants, or other obligations to issue shares outstanding on the date hereof as disclosed to the Holder in writing; or (iii) pursuant to options that may be issued under any employee incentive stock option and/or any qualified stock option plan adopted by the CompanyBorrower) for a consideration per share (the "OFFER PRICE"“Offer Price”) less than the Fixed Conversion Price in effect at the time of such issuance, then the Fixed Conversion Price shall be immediately reset pursuant to the formula set forth below. For purposes hereof, the issuance of any security of the Company Borrower convertible into or exercisable or exchangeable for Common Stock for a consideration per share less than the then applicable Fixed Conversion Price, shall result in an adjustment to the Fixed Conversion Price upon the issuance of such securities pursuant to the formula as set forth below. If the Company Borrower issues any additional shares of Common Stock for a consideration per share less than the then-applicable Fixed Conversion Price pursuant to this Section 3.6 2.5 then, and thereafter successively upon each such issue, the Fixed Conversion Price shall be adjusted by multiplying the then applicable Fixed Conversion Price by the following fraction: --------------------------------------- A + B --------------------------------------- (A + B) + [((C - D) x B) / C] --------------------------------------- A = Total amount of shares convertible pursuant to the Notes Security Agreement B = Actual shares sold in the offering C = Fixed Conversion Price D = Offer Price Such adjustment shall become effective immediately upon the earlier to occur of the date of issuance of such shares of Common Stock or the record date for the determination of stockholders entitled to receive the convertible securities, as the case may be.Price

Share Issuances. Subject to the provisions of this Section 3.62.5, if the Company Borrower shall at any time (after the date hereof) prior to the conversion or repayment in full of the Principal Amount issue any shares of Common Stock or securities convertible into Common Stock to a person other than the Holder (except (i) pursuant to Sections 3.6(a) Subsections A, B or (b) C above; (ii) pursuant to options, warrants, or other obligations to issue shares outstanding on the date hereof as disclosed to the Holder in writing; or (iii) pursuant to options that may be issued under any employee incentive stock option and/or any qualified stock option plan adopted by the CompanyBorrower) for a consideration per share (the "OFFER PRICEOffer Price") less than the Fixed Conversion Price in effect at the time of such issuance, then the Fixed Conversion Price shall be immediately reset pursuant to the formula set forth below. For purposes hereof, the issuance of any security of the Company Borrower convertible into or exercisable or exchangeable for Common Stock for a consideration per share less than the then applicable Fixed Conversion Price, shall result in an adjustment to the Fixed Conversion Price upon the issuance of such securities pursuant to the formula as set forth below. If the Company Borrower issues any additional shares of Common Stock for a consideration per share less than the then-applicable Fixed Conversion Price pursuant to this Section 3.6 2.5 then, and thereafter successively upon each such issue, the Fixed Conversion Price shall be adjusted by multiplying the then applicable Fixed Conversion Price by the following fraction: --------------------------------------- A + B --------------------------------------- ------------------------------ (A + B) + [((C - D) x B) / C] --------------------------------------- A = Total amount of shares convertible pursuant to the Notes Security Agreement B = Actual shares sold in the offering C = Fixed Conversion Price D = Offer Price Offering price Such adjustment shall become effective immediately upon the earlier to occur of the date of issuance of such shares of Common Stock or the record date for the determination of stockholders entitled to receive the convertible securities, as the case may be. If all of the shares of Common Stock subject to such convertible securities have not been issued when such convertible securities expire, then the Fixed Conversion Price shall promptly be readjusted to the Fixed Conversion Price that would then be in effect had the adjustment upon the issuance of such convertible securities been made on the basis of the actual number of shares of Common Stock issued upon the exercise of such convertible securities. For the purpose of this paragraph (D), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Borrower. The Borrower will not issue any shares of Common Stock or rights, warrants, convertible or exchangeable securities in respect of shares of Common Stock held in the treasury of the Borrower.

Share Issuances. Subject to the provisions of this Section 3.62.6, if the Company shall at any time prior to the conversion or repayment in full of the Principal Amount issue any shares of Common Stock or securities convertible into Common Stock to a person Person other than the Holder (except (i) pursuant to Sections 3.6(a2.6(a) or (b) above; (ii) pursuant to options, warrants, or other obligations to issue shares outstanding on the date hereof as disclosed to the Holder in writingwriting or in its Exchange Act Filings; or (iii) pursuant to options that may be issued under any employee incentive stock option and/or any qualified stock option plan adopted by the Company; or (iv) with respect to securities issued pursuant to acquisitions or strategic transactions, provided any such issuance shall only be to a company which is, itself or through its subsidiaries, an operating company in a business synergistic with the business of the Company and in which the Company receives benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities) for a consideration per share (the "OFFER PRICE"“Offer Price”) less than the Fixed Conversion Price in effect at the time of such issuance, then the Fixed Conversion Price shall be immediately reset pursuant to the formula set forth below. For purposes hereof, the issuance of any security of the Company convertible into or exercisable or exchangeable for Common Stock shall result in an adjustment to the Fixed Conversion Price upon the issuance of such securities pursuant to the formula belowsecurities. If the Company Parent issues any additional shares of Common Stock for a consideration per share less than the then-applicable Fixed Conversion Price pursuant to this Section 3.6 2.6 then, and thereafter successively upon each such issue, the Fixed Conversion Price shall be adjusted by multiplying the then applicable Fixed Conversion Price by the following fraction: --------------------------------------- A + B --------------------------------------- (A + B) + [((C - D) x B) / C] --------------------------------------- A = Total amount of shares convertible pursuant to any convertible Note issued by the Notes Company and/or any of its Subsidiaries to the Holder B = Actual shares sold in the offering C = Fixed Conversion Price D = Offer Price Such adjustment shall become effective immediately upon the earlier to occur of the date of issuance of such shares of Common Stock or the record date for the determination of stockholders entitled to receive the convertible securities, as the case may be.Price

Share Issuances. Subject to the provisions of this Section 3.63.5, if the Company Borrower shall at any time prior to the conversion or repayment in full of the Principal Amount issue any shares of Common Stock or securities convertible into Common Stock to a person other than the Holder (except (i) pursuant to Sections 3.6(a) Subsections A or (b) B above; (ii) pursuant to options, warrants, or other obligations to issue shares outstanding on the date hereof as disclosed to the Holder in writing; or (iii) pursuant to options that may be issued under any employee incentive stock option and/or any qualified stock option plan adopted by the CompanyBorrower) for a consideration per share (the "OFFER PRICE"“Offer Price”) less than the any Fixed Conversion Price in effect at the time of such issuance, then the such Fixed Conversion Price applicable to a portion of the outstanding principal amount of this Note (and all interest, fees, costs and expenses related thereto) equal to the fair market value of the aggregate consideration paid for, or attributable to, such shares of Common Stock or securities convertible into Common Stock (the “Aggregate Consideration”) shall be immediately reset pursuant to such lower Offer Price at the time of issuance of such securities (provided that, in the event that the outstanding principal amount of this Note is greater than the respective Aggregate Consideration, the Holder shall determine in its sole discretion which portion of the outstanding principal amount of this Note shall have a “reset” Fixed Conversion Price as a result of such issuance). For example, in the event that (i) the Offer Price is less than or equal to the formula set forth belowClosing Date Market Price and (ii) the Aggregate Consideration equals $1,000,000, a Fixed Conversion Price applicable to a principal amount of this Note equal to $1,000,000 (plus all interest, fees, costs and expenses related thereto) shall be reset to the Offer Price if the Offer Price is less than such Fixed Conversion Price in effect at the time of such issuance. For purposes hereof, the issuance of any security of the Company Borrower convertible into or exercisable or exchangeable for Common Stock shall result in an adjustment to the Fixed Conversion Price upon the issuance of such securities pursuant to the formula below. If the Company issues any additional shares of Common Stock for a consideration per share less than the then-applicable Fixed Conversion Price pursuant to this Section 3.6 then, and thereafter successively upon each such issue, the Fixed Conversion Price shall be adjusted by multiplying the then applicable Fixed Conversion Price by the following fraction: --------------------------------------- A + B --------------------------------------- (A + B) + [((C - D) x B) / C] --------------------------------------- A = Total amount of shares convertible pursuant to the Notes B = Actual shares sold in the offering C = Fixed Conversion Price D = Offer Price Such adjustment shall become effective immediately upon the earlier to occur of the date of issuance of such shares of Common Stock or the record date for the determination of stockholders entitled to receive the convertible securities, as the case may be.

Share Issuances. Subject to the provisions of this Section 3.63.5, if the Company Borrower shall at any time (after the date hereof) prior to the conversion or repayment in full of the Principal Amount issue any shares of Common Stock or securities convertible into Common Stock to a person other than the Holder (except (i) pursuant to Sections 3.6(a) Subsections A, B or (b) C above; (ii) pursuant to options, warrants, or other obligations to issue shares outstanding on the date hereof as disclosed to the Holder in writing; or (iii) pursuant to options that may be issued under any employee incentive stock option and/or any qualified stock option plan adopted by the CompanyBorrower) for a consideration per share (the "OFFER PRICE"“Offer Price”) less than the Fixed Conversion Price in effect at the time of such issuance, then the Fixed Conversion Price shall be immediately reset pursuant to the formula set forth below. For purposes hereof, the issuance of any security of the Company Borrower convertible into or exercisable or exchangeable for Common Stock for a consideration per share less than the then applicable Fixed Conversion Price, shall result in an adjustment to the Fixed Conversion Price upon the issuance of such securities pursuant to the formula as set forth below. If the Company Borrower issues any additional shares of Common Stock for a consideration per share less than the then-applicable Fixed Conversion Price pursuant to this Section 3.6 3.5 then, and thereafter successively upon each such issue, the Fixed Conversion Price shall be adjusted by multiplying the then applicable Fixed Conversion Price by the following fraction: --------------------------------------- A + B --------------------------------------- (A + B) + [((C - D) x B) / C] --------------------------------------- A = Total amount of shares convertible pursuant to the Notes Security Agreement B = Actual shares sold in the offering C = Fixed Conversion Price D = Offer Price Offering price Such adjustment shall become effective immediately upon the earlier to occur of the date of issuance of such shares of Common Stock or the record date for the determination of stockholders entitled to receive the convertible securities, as the case may be. If all of the shares of Common Stock subject to such convertible securities have not been issued when such convertible securities expire, then the Fixed Conversion Price shall promptly be readjusted to the Fixed Conversion Price that would then be in effect had the adjustment upon the issuance of such convertible securities been made on the basis of the actual number of shares of Common Stock issued upon the exercise of such convertible securities. For the purpose of this paragraph (D), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Borrower. The Borrower will not issue any shares of Common Stock or rights, warrants, convertible or exchangeable securities in respect of shares of Common Stock held in the treasury of the Borrower.

Share Issuances. Subject to the provisions of this Section 3.63.5, if the Company Borrower shall at any time (after the date hereof) prior to the conversion or repayment in full of the Principal Amount issue any shares of Common Stock or securities convertible into Common Stock to a person other than the Holder (except (i) pursuant to Sections 3.6(a) Subsections A, B or (b) C above; (ii) pursuant to options, warrants, or other obligations to issue shares outstanding on the date hereof as disclosed to the Holder in writing; or (iii) pursuant to options that may be issued under any employee incentive stock option and/or any qualified stock option plan adopted by the CompanyBorrower) for a consideration per share (the "OFFER PRICEOffer Price") less than the Fixed Conversion Price in effect at the time of such issuance, then the Fixed Conversion Price shall be immediately reset pursuant to the formula set forth below. For purposes hereof, the issuance of any security of the Company Borrower convertible into or exercisable or exchangeable for Common Stock for a consideration per share less than the then applicable Fixed Conversion Price, shall result in an adjustment to the Fixed Conversion Price upon the issuance of such securities pursuant to the formula as set forth below. If the Company Borrower issues any additional shares of Common Stock for a consideration per share less than the then-applicable Fixed Conversion Price pursuant to this Section 3.6 3.5 then, and thereafter successively upon each such issue, the Fixed Conversion Price shall be adjusted by multiplying the then applicable Fixed Conversion Price by the following fraction: --------------------------------------- A + B --------------------------------------- ------------------------------ (A + B) + [((C - D) x B) / C] --------------------------------------- A = Total amount of shares convertible pursuant to the Notes Security Agreement B = Actual shares sold in the offering C = Fixed Conversion Price D = Offer Price Offering price Such adjustment shall become effective immediately upon the earlier to occur of the date of issuance of such shares of Common Stock or the record date for the determination of stockholders entitled to receive the convertible securities, as the case may be. If all of the shares of Common Stock subject to such convertible securities have not been issued when such convertible securities expire, then the Fixed Conversion Price shall promptly be readjusted to the Fixed Conversion Price that would then be in effect had the adjustment upon the issuance of such convertible securities been made on the basis of the actual number of shares of Common Stock issued upon the exercise of such convertible securities. For the purpose of this paragraph (D), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Borrower. The Borrower will not issue any shares of Common Stock or rights, warrants, convertible or exchangeable securities in respect of shares of Common Stock held in the treasury of the Borrower.

Share Issuances. Subject to the provisions of this Section 3.6, if the Company Parent shall at any time prior to the conversion or repayment in full of the Principal Amount issue any shares of Common Stock or securities convertible into Common Stock to a person other than the Holder (except (i) pursuant to Sections 3.6(a) or (b) above; (ii) pursuant to options, warrants, or other obligations to issue shares outstanding on the date hereof as disclosed to the Holder in writing; or (iii) pursuant to options and awards that may be issued under any employee incentive stock option and/or any qualified stock option plan adopted by the CompanyParent, or (iv) pursuant to any acquisition with the prior written consent of the Holder (the issuances set forth in the foregoing clauses “(i)” through “(iv)” shall hereafter be referred to as “Excluded Issuances”)) for a consideration per share (the "OFFER PRICE"“Offer Price”) less than the Fixed Conversion Price in effect at the time of such issuance, then the Fixed Conversion Price shall be immediately reset pursuant to the formula set forth below. For purposes hereof, the issuance of any security of the Company Parent convertible into or exercisable or exchangeable for Common Stock (other than for Excluded Issuances) shall result in an adjustment to the Fixed Conversion Price upon the issuance of such securities pursuant to the formula below. If the Company Parent issues any additional shares of Common Stock (other than for Excluded Issuances) for a consideration per share less than the then-applicable Fixed Conversion Price pursuant to this Section 3.6 then, and thereafter successively upon each such issue, the Fixed Conversion Price shall be adjusted by multiplying the then applicable Fixed Conversion Price by the following fraction: --------------------------------------- A + B --------------------------------------- (A + B) + [((C - D) x B) / C] --------------------------------------- A = Total amount of shares convertible pursuant to the Notes B = Actual shares sold in the offering C = Fixed Conversion Price D = Offer Price Such adjustment shall become effective immediately upon the earlier to occur of the date of issuance of such shares of Common Stock or the record date for the determination of stockholders entitled to receive the convertible securities, as the case may be.offering

Share Issuances. Subject to the provisions of this Section 3.62.5, if the Company Borrower shall at any time prior to the conversion or repayment in full of the Principal Amount issue any shares of Common Stock or securities convertible into Common Stock to a person other than the Holder (except (i) pursuant to Sections 3.6(a) Subsections A or (b) B above; (ii) pursuant to options, warrants, or other obligations to issue shares outstanding on the date hereof as disclosed to the Holder in writing; or (iii) pursuant to options that may be issued under any employee incentive stock option and/or any qualified stock option plan adopted by the CompanyBorrower) for a consideration per share (the "OFFER PRICE"“Offer Price”) less than the any Fixed Conversion Price in effect at the time of such issuance, then the such Fixed Conversion Price applicable to a portion of the outstanding principal amount of this Note (and all interest, fees, costs and expenses related thereto) equal to the fair market value of the aggregate consideration paid for, or attributable to, such shares of Common Stock or securities convertible into Common Stock (the “Aggregate Consideration”) shall be immediately reset pursuant to such lower Offer Price at the time of issuance of such securities (provided that, in the event that the outstanding principal amount of this Note is greater than the respective Aggregate Consideration, the Holder shall determine in its sole discretion which portion of the outstanding principal amount of this Note shall have a “reset” Fixed Conversion Price as a result of such issuance). For example, in the event that (i) the Offer Price is less than or equal to the formula set forth belowClosing Date Market Price and (ii) the Aggregate Consideration equals $1,000,000, a Fixed Conversion Price applicable to a principal amount of this Note equal to $1,000,000 (plus all interest, fees, costs and expenses related thereto) shall be reset to the Offer Price if the Offer Price is less than such Fixed Conversion Price in effect at the time of such issuance. For purposes hereof, the issuance of any security of the Company Borrower convertible into or exercisable or exchangeable for Common Stock shall result in an adjustment to the Fixed Conversion Price upon the issuance of such securities pursuant to the formula below. If the Company issues any additional shares of Common Stock for a consideration per share less than the then-applicable Fixed Conversion Price pursuant to this Section 3.6 then, and thereafter successively upon each such issue, the Fixed Conversion Price shall be adjusted by multiplying the then applicable Fixed Conversion Price by the following fraction: --------------------------------------- A + B --------------------------------------- (A + B) + [((C - D) x B) / C] --------------------------------------- A = Total amount of shares convertible pursuant to the Notes B = Actual shares sold in the offering C = Fixed Conversion Price D = Offer Price Such adjustment shall become effective immediately upon the earlier to occur of the date of issuance of such shares of Common Stock or the record date for the determination of stockholders entitled to receive the convertible securities, as the case may be.

Share Issuances. Subject to the provisions of this Section 3.63.5, if the Company Borrower shall at any time prior to the conversion or repayment in full of the Principal Amount issue any shares of Common Stock or securities convertible into Common Stock to a person other than the Holder (except pursuant to: (i) pursuant to Sections 3.6(a) Subsections A or (b) B above; (ii) pursuant to options, warrantssecurities issued, or other obligations deemed issued (as provided below), to issue shares outstanding on directors, officers, employees or consultants of the date hereof Borrower or a subsidiary of the Borrower in connection with their service as disclosed to directors of the Holder in writing; Borrower or (iii) pursuant to options that may be issued a subsidiary of the Borrower, their employment by the Borrower or a subsidiary of the Borrower or their retention as consultants by the Borrower or a subsidiary of the Borrower under any employee incentive stock option agreement and/or any qualified stock option plan adopted by the CompanyBorrower, plus such number of shares of Common Stock which are repurchased by the Borrower from such persons pursuant to contractual rights held by the Borrower and at repurchase prices not exceeding the respective original purchase prices paid by such persons to the Borrower therefor; (iii) shares of Common Stock issuable upon exercise of options, warrants or other obligations outstanding as of the date hereof; (iv) shares of Common Stock issuable upon the conversion of the Borrower’s Preferred Stock in existence on the date hereof; and (v) shares of Common Stock issued as payment of interest in accordance with the terms of the notes issued pursuant to that Note and Warrant Purchase Agreement dated as of July 18, 2003 by and among the Borrower and the investors named therein) for a consideration per share (the "OFFER PRICE"“Offer Price”) less than the Fixed Conversion Price in effect at the time of such issuance, then the Fixed Conversion Price shall be immediately reset pursuant to the formula set forth below. For purposes hereof, the issuance of any security of the Company convertible into or exercisable or exchangeable for Common Stock shall result in an adjustment to the Fixed Conversion Price upon the issuance of such securities pursuant to the formula below. : If the Company Corporation issues any additional shares of Common Stock for a consideration per share less than the then-applicable Fixed Conversion Price pursuant to this Section 3.6 3.5C above then, and thereafter successively upon each such issue, the Fixed Conversion Price shall be adjusted by multiplying the then applicable Fixed Conversion Price by the following fraction: --------------------------------------- A + B --------------------------------------- (A + B) + [((C - D) x B) / C] --------------------------------------- A = Total amount of shares convertible pursuant to the Notes this Note. B = Actual shares sold in the offering C = Fixed Conversion Price D = Offer Price Such adjustment shall become effective immediately upon the earlier to occur of the date of issuance of such shares of Common Stock or the record date for the determination of stockholders entitled to receive the convertible securities, as the case may be.Price

Share Issuances. Subject to the provisions of this Section 3.63.5, if ROIE shall (after the Company shall date hereof) at any time prior to the conversion or repayment in full of the Principal Amount issue any shares of Common Stock or securities convertible into Common Stock to a person other than the Holder (except (i) pursuant to Sections 3.6(a) Subsections A or (b) B above; (ii) pursuant to options, warrants, or other obligations to issue shares outstanding on the date hereof as disclosed to the Holder in writing; or (iii) pursuant to options that may be issued under any employee incentive stock option and/or any qualified stock option plan adopted by the CompanyROIE) for a consideration per share (the "OFFER PRICE") less than the Fixed Conversion Price in effect at the time of such issuance, then the Fixed Conversion Price shall be immediately reset pursuant to the formula set forth below. For purposes hereof, the issuance of any security of the Company ROIE convertible into or exercisable or exchangeable for Common Stock for a consideration per share less than the then applicable Fixed Conversion Price shall result in an adjustment to the Fixed Conversion Price upon the issuance of such securities pursuant to the formula as set forth below. If the Company ROIE issues any additional shares of Common Stock for a consideration per share less than the then-applicable Fixed Conversion Price pursuant to this Section 3.6 3.5 then, and thereafter successively upon each such issue, the Fixed Conversion Price shall be adjusted by multiplying the then applicable Fixed Conversion Price by the following fraction: --------------------------------------- A + B --------------------------------------- -------------------------------------- (A + B) + [((C - D) x B) / C] --------------------------------------- -------------------------------------- A = Total amount of shares convertible pursuant to the Notes Notes. B = Actual shares sold in the offering C = Fixed Conversion Price D = Offer Price Offering price Such adjustment shall become effective immediately upon the earlier to occur of the date of issuance of such shares of Common Stock or the record date for the determination of stockholders entitled to receive the convertible securities, as the case may be. If all of the shares of Common Stock subject to such convertible securities have not been issued when such convertible securities expire, then the Fixed Conversion Price shall promptly be readjusted to the Fixed Conversion Price that would then be in effect had the adjustment upon the issuance of such convertible securities been made on the basis of the actual number of shares of Common Stock issued upon the exercise of such convertible securities. For the purpose of this paragraph (C), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of ROIE. ROIE will not issue any shares of Common Stock or rights, warrants, convertible or exchangeable securities in respect of shares of Common Stock held in the treasury of ROIE.

Share Issuances. Subject to the provisions of this Section 3.6, if the Company Parent shall at any time prior to the conversion or repayment in full of the Principal Amount issue any shares of Common Stock or securities convertible into Common Stock to a person other than the Holder (except (i) pursuant to Sections 3.6(a) or (b) above; (ii) pursuant to options, warrants, or other obligations to issue shares outstanding on the date hereof as disclosed to the Holder in writingwriting (either in a Schedule to the Security Agreement or in any of the Parent's SEC Reports or Exchange Act Filings); or (iii) pursuant to options that may be issued under any employee incentive stock option and/or any qualified stock option plan adopted by the CompanyParent) for a consideration per share (the "OFFER PRICEOffer Price") less than the Fixed Conversion Price in effect at the time of such issuance, then the Fixed Conversion Price shall be immediately reset pursuant to the formula set forth below. For purposes hereof, the issuance of any security of the Company Parent convertible into or exercisable or exchangeable for Common Stock shall result in an adjustment to the Fixed Conversion Price upon the issuance of such securities pursuant to the formula below. If the Company Parent issues any additional shares of Common Stock for a consideration per share less than the then-applicable Fixed Conversion Price pursuant to this Section 3.6 then, and thereafter successively upon each such issue, the Fixed Conversion Price shall be adjusted by multiplying the then applicable Fixed Conversion Price by the following fraction: --------------------------------------- -------------------------- A + B --------------------------------------- -------------------------- (A + B) + [((C - D) x B) / C] --------------------------------------- -------------------------- A = Total amount of shares convertible pursuant to the Notes B = Actual shares sold in the offering C = Fixed Conversion Price D =D = Offer Price Such adjustment shall become effective immediately upon the earlier to occur of the date of issuance of such shares of Common Stock or the record date for the determination of stockholders entitled to receive the convertible securities, as the case may be.Price