Common use of Subsequent Placements Clause in Contracts

Subsequent Placements. Subject to Section 3(i), if the Company, at any time during the one year period following the date of this Warrant (the “Participation Right Period”), shall complete a Subsequent Placement at an effective price per share less than the then effective Exercise Price (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”), as adjusted hereunder (if the holder of the Equity Securities so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which is issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive Issuance), then, the Exercise Price shall be reduced and only reduced to equal the Base Share Price. Such adjustment shall be made during the Participation Right Period whenever such Equity Securities are issued. Notwithstanding the foregoing, no adjustments shall be made, paid or issued during the Participation Right Period under this Section 3(b) in respect of Exempt Issuances. During the Participation Right Period, the Company shall notify the Holder in writing as promptly as reasonably possible following the issuance of any Equity Securities subject to this section, indicating therein the applicable issuance price, or of applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 3(b), upon the occurrence of any Dilutive Issuance during the Participation Right Period, after the date of such Dilutive Issuance the Holder is entitled to the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercise.

Subsequent Placements. Subject to Section 3(i), if the Company, at any time during the one year period following From the date of this Warrant (hereof until the “Participation Right Period”), shall complete a Subsequent Placement at an effective price per share less than the then effective Exercise Price (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”), as adjusted hereunder (if the holder 30 day anniversary of the Equity Securities so issued date hereof, neither the Company nor any subsidiary of the Company shall at (i) issue, enter into any time, whether by operation agreement to issue or announce the issuance or proposed issuance of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which is issued in connection with such issuance, be entitled to receive any shares of Common Stock at an effective price per share which is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date or any securities of the Dilutive Issuance)Company or any subsidiaries which would entitle the holder thereof to acquire at any time shares of Common Stock, thenincluding, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the Exercise Price shall be reduced and only reduced holder thereof to equal receive, shares of Common Stock, or (ii) file any registration statement, or amendment or supplement thereto, with the Base Share Price. Such adjustment shall be made during the Participation Right Period whenever such Equity Securities are issuedCommission other than those filed pursuant to this agreement or Other Warrant Exercised Agreements executed by Other Holders. Notwithstanding the foregoing, no adjustments the foregoing shall be made, paid or issued during the Participation Right Period under this Section 3(b) not apply in respect of an Exempt IssuancesIssuance. During the Participation Right Period, the Company shall notify the Holder in writing as promptly as reasonably possible following “Exempt Issuance” means the issuance of (a) shares of Common Stock or options to employees, officers or directors of the Company pursuant to any Equity Securities subject stock or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose for services rendered to the Company, provided, however, such issuance shall not exceed ten percent (10%) of the shares of Common Stock issued and outstanding as of the date hereof, (b) securities upon the exercise or exchange of or conversion of any securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this sectionAgreement, indicating therein provided that such securities have not been amended since the applicable issuance price, date of this Agreement to increase the number of such securities or of applicable reset to decrease the exercise price, exchange price, price or conversion price of such securities (other than in connection with stock splits or combinations) or to extend the term of such securities, and other pricing terms (c) securities issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company, provided that such notice securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the “Dilutive Issuance Notice”). For purposes filing of clarificationany registration statement in connection therewith, whether and provided that any such issuance shall only be to a Person (or not to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company provides a Dilutive Issuance Notice pursuant to this Section 3(b), upon the occurrence of any Dilutive Issuance during the Participation Right Period, after the date of such Dilutive Issuance the Holder is entitled and shall provide to the Base Share Price regardless of whether the Holder accurately refers Company additional benefits in addition to the Base Share Price investment of funds, but shall not include a transaction in which the Notice Company is issuing securities primarily for the purpose of Exerciseraising capital or to an entity whose primary business is investing in securities.

Subsequent Placements. Subject to Section 3(i)(a) From the Closing Date until the 540th day following the Closing Date, if the Company, at directly or indirectly, plans to offer, sell, grant any time during option to purchase, or otherwise dispose of (or announces any offer, sale, grant or any option to purchase or other disposition of) any of its Common Stock or any Common Stock Equivalents (a "Subsequent Placement"), then the one year period following Company shall provide to each of the Purchasers a written notice which shall include a term sheet of the material terms thereof (the "Subsequent Placement Notice"), not less than 10 calendar days prior to the intended date of consummation of such Subsequent Placement, of its intention to effect such Subsequent Placement. If on the date of this Warrant receipt by the Purchasers of the Subsequent Placement Notice (the “Participation Right Period”"Subsequent Placement Notice Date"), the Closing Price is greater than the Market Price, each Purchaser shall complete have the right to participate on a pro-rata basis in the Subsequent Placement for an investment amount equal to the greater of (i) 21% of the aggregate purchase price of the securities offered in the Subsequent Placement multiplied by such Purchaser's Holdings Percentage and (ii) $5,000,000 multiplied by such Purchaser's Holdings Percentage. If on the Subsequent Placement Notice Date, the Closing Price is equal to or lower than the Market Price, each Purchaser shall have the right to participate for an investment amount equal to the greater of (i) 50% of the aggregate purchase price of the securities offered in the Subsequent Placement multiplied by such Purchasers' Holdings Percentage and (ii) $5,000,000 multiplied by such Purchaser's Holdings Percentage. Purchasers electing to participate in a Subsequent Placement at an effective price per share less under this Section 4.12(a) shall notify the Company not later than the then effective Exercise Price (such lower pricetenth calendar day following the Subsequent Placement Notice Date. If the Purchasers shall fail to so notify the Company of their willingness to participate in the Subsequent Placement, the “Base Share Price” Company may effect such Subsequent Placement on the terms and such issuances collectivelyto the Persons set forth in the Subsequent Placement Notice, provided, that the Company must provide the Purchasers with a “Dilutive Issuance”second Subsequent Placement Notice and the Purchasers will again have the right of first refusal set forth above in this Section 4.12(a), as adjusted hereunder (if the holder Subsequent Placement subject to the initial Subsequent Placement Notice is not consummated for any reason on the terms set forth in such Subsequent Placement Notice within 45 days after the Subsequent Placement Notice Date with the Person identified in the Subsequent Placement Notice. (b) The Purchasers right to participate in a Subsequent Placement under Section 4.12(a) shall not apply to: (i) any issuance of the Equity Securities so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise Common Stock or exchange prices or otherwise, or due to warrants, options or rights per share which is issued Common Stock Equivalents in connection with the acquisition by the Company of all or substantially all of the securities or assets of another entity, (ii) a bona fide underwritten public offering of the Common Stock with gross proceeds to the Company in excess of $30,000,000 (which shall not include equity lines of credit or similar transactions), (iii) any grant of options or Common Stock to employees, officers or directors or bona fide consultants of the Company pursuant to any stock option incentive plan duly adopted by the Company's board of directors or in respect of the issuance of Common Stock upon exercise of any such issuanceoptions, be entitled to receive (iv) any Common Stock sold under the Company's employee stock purchase plan, (v) any payment of dividends on the Preferred Stock or interest on the Debentures in shares of Common Stock at an effective price per share which is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive Issuance), then, the Exercise Price shall be reduced and only reduced to equal the Base Share Price. Such adjustment shall be made during the Participation Right Period whenever such Equity Securities are issued. Notwithstanding the foregoing, no adjustments shall be made, paid or issued during the Participation Right Period under this Section 3(b(vi) in respect of Exempt Issuances. During the Participation Right Period, the Company shall notify the Holder in writing as promptly as reasonably possible following the issuance of any Equity Securities subject to this section, indicating therein the applicable issuance price, or shares of applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides Common Stock in connection with a Dilutive Issuance Notice pursuant to this Section 3(b), upon the occurrence of any Dilutive Issuance during the Participation Right Period, after the date of such Dilutive Issuance the Holder is entitled to the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of ExerciseStrategic Transaction.

Subsequent Placements. Subject to Section 3(i), if the Company, at any time during the one year period following From the date of this Warrant (hereof until the “Participation Right Period”), shall complete a Subsequent Placement at an effective price per share less than the then effective Exercise Price (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”), as adjusted hereunder (if the holder earlier of the Equity Securities so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which date the registration statement is issued in connection with such issuance, be entitled to receive shares of Common Stock at an declared effective price per share which is less than and the Exercise Price, such issuance shall be deemed to have occurred for less than date 90 days after the Exercise Price on such date of the Dilutive Issuance), then, the Exercise Price shall be reduced and only reduced to equal the Base Share Price. Such adjustment shall be made during the Participation Right Period whenever such Equity Securities are issued. Notwithstanding the foregoing, no adjustments shall be made, paid or issued during the Participation Right Period under this Section 3(b) in respect of Exempt Issuances. During the Participation Right PeriodClosing, the Company shall not effect a financing through the sale of its Common Stock or common stock equivalents (a “Subsequent Financing”) unless the Company delivers to each of the Purchasers hereunder a written notice at least 5 business days prior to the closing of such Subsequent Financing (the “Subsequent Financing Notice”) of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Persons or entities with whom such Subsequent Financing is proposed to be effected, and attached to which shall be any term sheet or similar document relating thereto and offer to each Purchaser the opportunity to participate in such Subsequent Financing on the same terms and conditions as set forth in the Subsequent Financing Notice. Each Purchaser shall have until 6:30 p.m. (New York City time) on the fifth (5th) business day after its receipt of the Subsequent Financing Notice to notify the Holder Company of its willingness to provide, subject to completion of mutually acceptable documentation, an amount equal to the proportion of the aggregate amount to be raised in writing as promptly as reasonably possible following such transaction represented by such Purchaser’s proportionate share of the amounts purchased in the transactions contemplated hereby, on the same terms and conditions set forth in the Subsequent Financing Notice. Notwithstanding anything to the contrary herein, this Section 19 shall not apply to the following: (i) the granting of options or restricted stock to employees, officers, directors and key consultants of the Company pursuant to any stock option plan or agreement duly adopted by the Company’s board of directors by vote of a majority of the independent members of the board or a committee of independent directors established for such purpose, or (ii) the exercise of any security issued by the Company in connection with the offer and sale of the Company’s securities pursuant to this Agreement, or (iii) the exercise of or conversion of any convertible securities, options or warrants issued and outstanding on the date hereof, provided such securities have not been amended since the date hereof, or (iv) the issuance of any Equity Securities subject securities to this sectioncustomers, indicating therein vendors or joint venture partners or in connection with other strategic alliances approved by the applicable issuance priceCompany’s board of directors which involve the grant of licenses or localization, marketing or distribution, OEM, bundling, manufacturing or resale rights respect to the Company’s products or technology, the primary purpose of which is not to raise equity capital, or (v) the issuance of applicable reset pricesecurities in connection with an equipment lease financing transaction or a bank financing transaction approved by the Company’s board of directors, exchange priceno significant purpose of which is to raise equity capital; or (vi) the exercise of or conversion of any convertible securities, conversion price options or warrants issued and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice outstanding pursuant to this Section 3(bsubclauses (i), upon the occurrence of any Dilutive Issuance during the Participation Right Period, after the date of such Dilutive Issuance the Holder is entitled to the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercise(iv) and (v) above.

Subsequent Placements. Subject (a) Prior to the date which is ninety (90) days after the Initial Closing, the Company will not, directly or indirectly, sell, grant any option to purchase, or otherwise dispose of (or announce any sale, grant or any option to purchase or other disposition of any of Common Stock or Common Stock Equivalents (as defined below) pursuant to a private placement (such offer, sale, grant, disposition or announcement being referred to as "Subsequent Placement"), unless the Company delivers to each Purchaser a written notice (the "Subsequent Placement Notice") of its intention to effect such Subsequent Placement, which specifies in reasonable detail all of the material terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the names of the investors (including the investment manager of such investors, if any) and the investment bankers with whom such Subsequent Placement is proposed to be effected, and attached to which shall be a term sheet or similar document. If a Purchaser wises to participate in the Subsequent Placement, it must notify the Company by 6:30 p.m. (New York City time) on the third business day after delivery of the Subsequent Placement Notice of its willingness to provide a stated investment amount, subject to completion of mutually acceptable documentation, up to fifty percent (50%) of such financing to the Company on the same terms set forth in the Subsequent Placement Notice. The Company may consummate the remaining portion of such Subsequent Placement on the terms and to the persons set forth in the Subsequent Placement Notice. The Company shall provide each Purchaser with a second Subsequent Placement Notice and each Purchaser will again have the right of first refusal set forth in this Section 3(i11(a), if the Company, at any time during the one year period following the date of this Warrant (the “Participation Right Period”), shall complete a Subsequent Placement at an effective price per share less than the then effective Exercise Price (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”), as adjusted hereunder (if the holder of the Equity Securities so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which is issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive Issuance), then, the Exercise Price shall be reduced and only reduced to equal the Base Share Price. Such adjustment shall be made during the Participation Right Period whenever such Equity Securities are issued. Notwithstanding the foregoing, no adjustments shall be made, paid or issued during the Participation Right Period under this Section 3(b) in respect of Exempt Issuances. During the Participation Right Period, the Company shall notify the Holder in writing as promptly as reasonably possible following the issuance of any Equity Securities subject to this section, indicating therein the applicable issuance price, or of applicable reset price, exchange price, conversion price and other pricing initial Subsequent Placement Notice is not consummated for any reason on the terms set forth in such Subsequent Notice within sixty (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 3(b), upon the occurrence of any Dilutive Issuance during the Participation Right Period, 60) days after the date of such Dilutive Issuance the Holder is initial Subsequent Placement Notice with the person(s) identified in the Subsequent Placement Notice. If the Purchasers indicate in the aggregate a willingness to provide financing in excess of fifty percent (50%) of the amount set forth in the Subsequent Placement Notice, then each participating Purchaser will be entitled to provide financing pursuant to such Subsequent Placement Notice up to an amount equal to such Purchaser's Pro Rata Portion (as defined below) of the Base Share Price regardless of whether the Holder accurately refers Common Stock or Common Stock Equivalents to the Base Share Price be issued in the Notice of Exercise.such Subsequent Placement. "

Subsequent Placements. Subject (a) Until the one year anniversary of the date hereof, the Company will not, directly or indirectly, offer, sell, grant any option to Section 3(i)purchase any of its equity or equity equivalent securities, if the Companyincluding without limitation any debt, preferred stock or other instrument or security that is, at any time during its life and under any circumstances, convertible into or exchangeable for Common Stock in a private offering undertaken for the one year period following purpose of raising capital (any such offer, sale, grant, disposition or announcement being referred to as a “Subsequent Placement”), unless (i) the date Company delivers to each of this Warrant the Investors a written notice (the “Participation Right Period”), shall complete a Subsequent Placement at an effective price per share less than Notice”) of its intention to effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the then effective Exercise Price (proposed terms of such lower priceSubsequent Placement, the “Base Share Price” amount of proceeds intended to be raised thereunder, the person with whom such Subsequent Placement is proposed to be effected, and attached to which shall be a term sheet or similar document relating thereto and (ii) such issuances collectively, a “Dilutive Issuance”), as adjusted hereunder Investor shall not have notified the Company by 6:30 p.m. (if New York City time) on the holder fifth trading day after its receipt of the Equity Securities so issued shall at Subsequent Placement Notice of its willingness to provide, subject to completion of mutually acceptable documentation, financing to the Company on the same terms set forth in the Subsequent Placement Notice, provided that the Investors’ right to participate in any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which is issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than the Exercise Price, such issuance Subsequent Placement shall be deemed limited in the aggregate to have occurred for less than the Exercise Price on such date 35% of the Dilutive Issuance)total gross proceeds raised by the Company in such Subsequent Placement, then, the Exercise Price and further provided an Investor’s right to participate in any Subsequent Placement shall be reduced and only reduced limited to equal the Base Share Price. Such adjustment amount that would not require the Company to obtain prior shareholder approval for the Subsequent Placement under Nasdaq Marketplace Rule 4350(i)(1)(B) or any successor rule, unless the Company is otherwise required to obtain prior shareholder approval for such Subsequent Placement, in which case the Company shall seek the approval of its shareholders for the Investors to fund up to 35% of the gross proceeds raised in the Subsequent Placement, which participation level shall be made during subject to the Participation Right Period whenever Company obtaining such Equity Securities approval. If the Investors shall fail to so notify the Company of their willingness to participate or are issued. Notwithstanding not eligible to participate in the foregoing, no adjustments shall be made, paid or issued during the Participation Right Period under this Section 3(b) in respect of Exempt Issuances. During the Participation Right PeriodSubsequent Placement, the Company shall notify may effect such Subsequent Placement on the Holder terms and to one or more of the persons set forth in writing as promptly as reasonably possible following the issuance Subsequent Placement Notice; provided that the Company must provide the Investors with a second Subsequent Placement Notice, and the Investors will again have the right of any Equity Securities participation set forth above in this paragraph (a), if the Subsequent Placement subject to this section, indicating therein the applicable issuance price, or of applicable reset price, exchange price, conversion price and other pricing initial Subsequent Placement Notice is not consummated for any reason on the terms (set forth in such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Subsequent Placement Notice pursuant to this Section 3(b), upon the occurrence of any Dilutive Issuance during the Participation Right Period, within 40 days after the date of the initial Subsequent Placement Notice with the one or more of the persons identified in the Subsequent Placement Notice. If the Investors are eligible to participate and indicate a willingness to participate in the Subsequent Financing, then the Company may, in its sole discretion, increase the amount of proceeds to be raised in the Subsequent Financing set forth in the Subsequent Placement Notice in order to accommodate such Dilutive Issuance Investors’ participation, which shall remain subject to the Holder is limitations set forth in this paragraph (a), except that the Company cannot increase the overall size of such Subsequent Placement to the extent such increase would thereby require prior shareholder approval under applicable law or Nasdaq marketplace rules. Such increase shall not require the Company to send an additional Subsequent Placement Notice to the Investors. If eligible Investors indicate a willingness to provide financing in excess of the 35% limitation described above, then each such Investor will be entitled to the Base Share Price regardless of whether the Holder accurately refers provide financing pursuant to such Subsequent Placement Notice up to an amount equal to the Base Share Price product of (x) such Investor’s pro rata portion of the aggregate purchase price paid in cash for the Notice Securities (including the Underlying Shares) under the Agreements and (y) 35% of Exercisethe total gross proceeds raised by the Company in such Subsequent Placement.

Subsequent Placements. Subject From the date hereof until the Effective Date, the Company will not, directly or indirectly, offer, sell, grant any option to Section 3(i)purchase, if or otherwise dispose of (or agree to do any of the Companyforegoing) (or announce any offer, sale, grant or any option to purchase or other disposition of) any of its or the Subsidiaries’ equity or equity equivalent securities, including without limitation any debt, preferred stock or other instrument or security that is, at any time during its life and under any circumstances, convertible into or exchangeable or exercisable for Common Stock or Common Stock Equivalents (any such offer, sale, grant, disposition or announcement being referred to as a “Subsequent Placement”). From the one year period following Effective Date until 30 Trading Days after the date of this Warrant Effective Date (the “Participation Right Blockout Period”), the Company will not, directly or indirectly, effect any Subsequent Placement, except with regard to Excluded Stock. The Blockout Period set forth in Section 4.5(b) above shall complete be extended for the number of Trading Days during such period in which (i) trading in the Common Stock is suspended by any Trading Market, (ii) the Registration Statement is not effective, or (iii) the prospectus included in the Registration Statement may not be used by the Purchasers for the resale of Registrable Securities thereunder. From the end of the Blockout Period until the seven month anniversary thereof, the Company will not, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4.5(d). The Company shall deliver to each Purchaser a written notice (the “Offer”) of any proposed or intended issuance or sale or exchange of the securities being offered (the “Offered Securities”) in a Subsequent Placement at Placement, which Offer shall (w) identify and describe the Offered Securities, (x) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (y) identify the persons or entities to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (z) offer to issue and sell to or exchange with each Purchaser (A) a pro rata portion of the Offered Securities based on such Purchaser’s pro rata portion of the aggregate purchase price paid by the Purchasers for all of the Shares purchased hereunder (the “Basic Amount”), and (B) with respect to each Purchaser that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Purchasers as such Purchaser shall indicate it will purchase or acquire should the other Purchasers subscribe for less than their Basic Amounts (the “Undersubscription Amount”). To accept an effective price per share Offer, in whole or in part, a Purchaser must deliver a written notice to the Company prior to the end of the ten (10) Trading Day period of the Offer, setting forth the portion of the Purchaser’s Basic Amount that such Purchaser elects to purchase and, if such Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts, then effective Exercise Price (such lower priceeach Purchaser who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, that if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Base Share Price” and such issuances collectively, a “Dilutive IssuanceAvailable Undersubscription Amount”), as adjusted hereunder (if the holder of the Equity Securities so issued each Purchaser who has subscribed for any Undersubscription Amount shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which is issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date purchase only that portion of the Dilutive Issuance)Available Undersubscription Amount as the Basic Amount of such Purchaser bears to the total Basic Amounts of all Purchasers that have subscribed for Undersubscription Amounts, then, subject to rounding by the Exercise Price shall be reduced and only reduced Board of Directors to equal the Base Share Priceextent its deems reasonably necessary. Such adjustment shall be made during the Participation Right Period whenever such Equity Securities are issued. Notwithstanding the foregoing, no adjustments shall be made, paid or issued during the Participation Right Period under this Section 3(b) in respect of Exempt Issuances. During the Participation Right Period, the The Company shall notify have five (5) Trading Days from the Holder expiration of the period set forth in writing as promptly as reasonably possible following the issuance of Section 4.5(d)(ii) above to issue, sell or exchange (or any Equity Securities subject to this section, indicating therein the applicable issuance price, binding commitment thereto) all or of applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 3(b), upon the occurrence of any Dilutive Issuance during the Participation Right Period, after the date part of such Dilutive Issuance the Holder is entitled Offered Securities as to the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the which a Notice of Exercise.Acceptance has not been given by the

Subsequent Placements. Subject (a) From the date hereof until the Effective Date, the Company will not, directly or indirectly, offer, sell, grant any option to Section 3(i)purchase, if or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition of) any of its or the CompanySubsidiaries’ equity or equity equivalent securities, including without limitation any debt, preferred stock or other instrument or security that is, at any time during its life and under any circumstances, convertible into or exchangeable for Common Stock (any such offer, sale, grant, disposition or announcement being referred to as a “Subsequent Placement”), unless (i) the one year period following Company delivers to each of the date of this Warrant Purchasers a written notice (the “Participation Right PeriodSubsequent Placement Notice”) of its intention to effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement is proposed to be effected, and attached to which shall be a term sheet or similar document relating thereto and (ii) such Purchaser shall not have notified the Company by 6:30 p.m. (New York City time) on the second Trading Day after its receipt of the Subsequent Placement Notice of its willingness to provide (or to cause its designee to provide), shall complete a subject to completion of mutually acceptable documentation, all or part of such financing to the Company on the same terms set forth in the Subsequent Placement at an effective price per share less than Notice. If the then effective Exercise Price (such lower price, Purchasers shall fail to so notify the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”), as adjusted hereunder (if Company of their willingness to participate in the holder of the Equity Securities so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which is issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive Issuance), then, the Exercise Price shall be reduced and only reduced to equal the Base Share Price. Such adjustment shall be made during the Participation Right Period whenever such Equity Securities are issued. Notwithstanding the foregoing, no adjustments shall be made, paid or issued during the Participation Right Period under this Section 3(b) in respect of Exempt Issuances. During the Participation Right Periodfull Subsequent Placement, the Company shall notify may effect the Holder remaining portion of such Subsequent Placement on the terms and to the Persons set forth in writing as promptly as reasonably possible following the issuance Subsequent Placement Notice; provided that the Company must provide the Purchasers with a second Subsequent Placement Notice, and the Purchasers will again have the right of any Equity Securities first refusal set forth above in this paragraph (a), if the Subsequent Placement subject to this section, indicating therein the applicable issuance price, or of applicable reset price, exchange price, conversion price and other pricing initial Subsequent Placement Notice is not consummated for any reason on the terms (set forth in such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Subsequent Placement Notice pursuant to this Section 3(b), upon the occurrence of any Dilutive Issuance during the Participation Right Period, within 30 Trading Days after the date of such Dilutive Issuance the Holder is initial Subsequent Placement Notice with the Persons identified in the Subsequent Placement Notice. If the Purchasers indicate a willingness to provide financing in excess of the amount set forth in the Subsequent Placement Notice, then each Purchaser will be entitled to provide financing pursuant to such Subsequent Placement Notice up to an amount equal to such Purchaser’s pro rata portion of the Base Share Price regardless aggregate purchase price paid for the Securities under this Agreement, but the Company shall not be required to accept financing from the Purchasers in an amount in excess of whether the Holder accurately refers to the Base Share Price amount set forth in the Notice of ExerciseSubsequent Placement Notice.

Subsequent Placements. Subject From the date hereof until the Effective Date, the Company will not, directly or indirectly, offer, sell, grant any option to Section 3(i)purchase, if the Companyor otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition of) any of its equity or equity equivalent securities, including without limitation any debt, preferred stock or other instrument or security that is, at any time during its life and under any circumstances, convertible into or exchangeable for common stock (any such offer, sale, grant, disposition or announcement being referred to as a "Subsequent Placement"), unless (i) the one year period following Company delivers to the date of this Warrant Purchaser a written notice (the “Participation Right Period”), shall complete a "Subsequent Placement at an effective price per share less than Notice") of its intention to effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the then effective Exercise Price (proposed terms of such lower priceSubsequent Placement, the “Base Share Price” amount of proceeds intended to be raised thereunder, the person with whom such Subsequent Placement is proposed to be effected, and such issuances collectively, attached to which shall be a “Dilutive Issuance”), as adjusted hereunder term sheet or similar document relating thereto and (if ii) the holder Purchaser shall not have notified the Company by 5:00 p.m. (New York City time) on the fifth calendar day after its receipt of the Equity Securities Subsequent Placement Notice of its willingness to provide financing to the Company on the same terms set forth in the Subsequent Placement Notice. If the Purchaser shall fail to so issued shall at notify the Company of its willingness to participate in the Subsequent Placement, the Company may effect such Subsequent Placement on the terms and to the persons set forth in the Subsequent Placement Notice and to any timeof the Other Purchasers that have elected to participate in the Subsequent Placement. If all Purchasers indicate a willingness to provide financing in an aggregate amount that is in excess of the amount set forth in the Subsequent Placement Notice, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which is issued in connection with such issuance, then the Purchaser will be entitled to receive shares of Common Stock at provide financing pursuant to such Subsequent Placement Notice up to an effective price per share which is less than amount equal to the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date Purchaser's pro rata portion of the Dilutive Issuance), then, aggregate purchase price paid for the Exercise Price shall be reduced and only reduced to equal the Base Share Price. Such adjustment shall be made during the Participation Right Period whenever such Equity Securities are issued. Notwithstanding the foregoing, no adjustments shall be made, paid or issued during the Participation Right Period Shares under this Section 3(b) in respect of Exempt Issuances. During the Participation Right PeriodAgreement, but the Company shall notify not be required to accept financing from the Holder Purchasers in writing as promptly as reasonably possible following an amount in excess of the amount set forth in the Subsequent Placement Notice. The foregoing shall not apply to the grant of options or warrants, or the issuance of additional securities, (i) to any Equity Securities subject to this section, indicating therein of the applicable issuance price, or of applicable reset price, exchange price, conversion price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice Other Purchasers pursuant to this Section 3(b), upon the occurrence of any Dilutive Issuance during the Participation Right Period, after the date of such Dilutive Issuance the Holder is entitled Agreements provided they are on terms no more favorable than provided to the Base Share Price regardless of whether Purchaser under the Holder accurately refers Agreement or (ii) to the Base Share Price in the Notice of Exerciseany employees or consultants under any duly authorized Company stock option, restricted stock plan or stock purchase plan.

Subsequent Placements. Subject (a) From the date hereof until the Effective Date, the Company will not, directly or indirectly, offer, sell, grant any option to Section 3(i)purchase, if or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition of) any of its or the CompanySubsidiaries' equity or equity equivalent securities, including without limitation any debt, preferred stock or other instrument or security that is, at any time during its life and under any circumstances, convertible into or exchangeable for Common Stock (any such offer, sale, grant, disposition or announcement being referred to as a "SUBSEQUENT PLACEMENT"), unless (i) the one year period following Company delivers to each of the date of this Warrant Purchasers a written notice (the “Participation Right Period”"SUBSEQUENT PLACEMENT NOTICE") of its intention to effect such Subsequent Placement, which Subsequent Placement Notice shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Placement is proposed to be effected, and attached to which shall be a term sheet or similar document relating thereto and (ii) such Purchaser shall not have notified the Company by 6:30 p.m. (New York City time) on the second Trading Day after its receipt of the Subsequent Placement Notice of its willingness to provide (or to cause its designee to provide), shall complete a subject to completion of mutually acceptable documentation, all or part of such financing to the Company on the same terms set forth in the Subsequent Placement at an effective price per share less than Notice. If the then effective Exercise Price (such lower price, Purchasers shall fail to so notify the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”), as adjusted hereunder (if Company of their willingness to participate in the holder of the Equity Securities so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which is issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share which is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive Issuance), then, the Exercise Price shall be reduced and only reduced to equal the Base Share Price. Such adjustment shall be made during the Participation Right Period whenever such Equity Securities are issued. Notwithstanding the foregoing, no adjustments shall be made, paid or issued during the Participation Right Period under this Section 3(b) in respect of Exempt Issuances. During the Participation Right Periodfull Subsequent Placement, the Company shall notify may effect the Holder remaining portion of such Subsequent Placement on the terms and to the Persons set forth in writing as promptly as reasonably possible following the issuance Subsequent Placement Notice; provided that the Company must provide the Purchasers with a second Subsequent Placement Notice, and the Purchasers will again have the right of any Equity Securities first refusal set forth above in this paragraph (a), if the Subsequent Placement subject to this section, indicating therein the applicable issuance price, or of applicable reset price, exchange price, conversion price and other pricing initial Subsequent Placement Notice is not consummated for any reason on the terms (set forth in such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Subsequent Placement Notice pursuant to this Section 3(b), upon the occurrence of any Dilutive Issuance during the Participation Right Period, within 30 Trading Days after the date of such Dilutive Issuance the Holder is initial Subsequent Placement Notice with the Persons identified in the Subsequent Placement Notice. If the Purchasers indicate a willingness to provide financing in excess of the amount set forth in the Subsequent Placement Notice, then each Purchaser will be entitled to provide financing pursuant to such Subsequent Placement Notice up to an amount equal to such Purchaser's pro rata portion of the Base Share Price regardless aggregate purchase price paid for the Securities under this Agreement, but the Company shall not be required to accept financing from the Purchasers in an amount in excess of whether the Holder accurately refers to the Base Share Price amount set forth in the Notice of ExerciseSubsequent Placement Notice.