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 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) 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 purpose of raising capital (any such offer, sale, grant, disposition or announcement being referred to as a “Subsequent Placement”), unless (i) the Company delivers to each of the Investors a written notice (the “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 Investor shall not have notified the Company by 6:30 p.m. (New York City time) on the fifth trading day after its receipt of the 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 Subsequent Placement shall be limited in the aggregate to 35% of the total gross proceeds raised by the Company in such Subsequent Placement, and further provided an Investor’s right to participate in any Subsequent Placement shall be limited to the 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 subject to the Company obtaining such approval. If the Investors shall fail to so notify the Company of their willingness to participate or are not eligible to participate in the Subsequent Placement, the Company may effect such Subsequent Placement on the terms and to one year period following or more of the persons set forth in the 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 participation set forth above in this paragraph (a), if the 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 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 Investors’ participation, which shall remain subject to the limitations set forth in this Warrant paragraph (the “Participation Right Period”a), shall complete a except that the Company cannot increase the overall size of such Subsequent Placement at 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 effective price per share less than additional Subsequent Placement Notice to the then effective Exercise Price (such lower price, the “Base Share Price” and such issuances collectively, Investors. If eligible Investors indicate a “Dilutive Issuance”), as adjusted hereunder (if the holder willingness to provide financing in excess of the Equity Securities so issued shall at any time35% limitation described above, whether by operation then each such Investor will be entitled to provide financing pursuant to such Subsequent Placement Notice up to an amount equal to the product of (x) such Investor’s pro rata portion of the aggregate purchase price adjustmentspaid in cash for the Securities (including the Underlying Shares) under the Agreements and (y) 35% of the total gross proceeds raised by the Company in such Subsequent Placement. (b) The restrictions contained in paragraph (a) of this Section 8 shall not apply to (i) the granting of options to consultants, reset provisionsemployees, floating conversion, officers and directors of the Company pursuant to any stock option plan duly adopted by the Company or to the issuance of Common Stock upon exercise or exchange prices or otherwise, or due to warrants, of such options or rights per share which (ii) any equity securities issued pursuant to any equipment leasing arrangement or debt financing from a bank or similar financial institution whose primary business is lending money and not investing in securities; (iii) any equity securities issued in connection with strategic transactions involving the Company and other entities, including (A) joint ventures, manufacturing, marketing or distribution arrangements, (B) technology transfer or development arrangements; provided, that the primary purpose of such issuancetransaction is not the raising of capital, be entitled (iv) any securities issued for consideration other than cash pursuant to receive a merger, consolidation, acquisition or similar business combination; (v) any securities issued in connection with the settlement of pending or threatened litigation or similar proceeding, (vi) shares of Common Stock at an effective price per share which is less than the Exercise Priceissued in conjunction with any stock split, such issuance shall be deemed to have occurred for less than the Exercise Price on such date stock dividend or recapitalization of the Dilutive Issuance)Company, then, (vii) any securities issuable upon 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 exercise 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 priceconversion of, 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)the anti-dilution provisions contained within, upon the occurrence of any Dilutive Issuance during the Participation Right Periodagreement, after option, restricted stock awards, preferred stock or warrants outstanding on the date of such Dilutive Issuance the Holder is entitled hereof (but not to the Base Share Price regardless of whether extent amended hereafter) and (viii) any Securities issuable under the Holder accurately refers Agreements and the Warrants issued thereunder (including those issued pursuant to the Base Share Price in the Notice of Exerciseanti-dilution provisions contained therein).

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 amount set forth in the Subsequent Placement Notice. (b) The restrictions contained in paragraph (a) of this Section shall not apply to (i) any issuance of Common Stock or grant of options to employees, officers, directors of or consultants or advisors to the Base Share Price Company, in each case, pursuant to a stock-based plan duly approved by the Notice Company’s board of Exercisedirectors, (ii) upon exercise, conversion or exchange of any Common Stock Equivalents (as defined herein) referenced in Section 3.1(f) or Schedule 3.1(f) (provided that such exercise or conversion occurs in accordance with the terms thereof, without amendment or modification), (iii) the issuance of securities pursuant to the Company’s bona fide acquisition of another corporation, or all or a portion of its assets, by merger, purchase of assets or other corporate reorganization in each case, as approved by the Company’s board of directors and not for the principal purpose of raising cash, (iv) the issuance of securities to banks or equipment lessors, provided such issuance is approved by the Company’s board of directors and is not for the principal purpose of raising equity capital, (v) the issuance of securities in connection with a sponsored research, collaboration, technology license, OEM, marketing, joint venture or development agreement or strategic partnership or similar agreement approved by the Company’s board of directors, a primary purpose of which is not to raise equity capital, or (vi) the issuance of Common Stock pursuant to Section 4.9 hereof.

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 Section 3(i), if the Company, at any time during the one year period following the date Subsequent Placement: (i) EXCO shall deliver to each holder of this Warrant Eligible Shares (an “Eligible Purchaser”) a written notice (the “Participation Right PeriodOffer”) of any proposed Subsequent Placement, which Offer shall (A) identify and describe the securities to be offered (the “Offered Securities”), (B) describe the price and other terms upon which the Offered Securities are to be offered (including the aggregate number or amount of the Offered Securities to be offered), (C) offer to issue and sell the Offered Securities to each Eligible Purchaser, and (D) identify an address to which an Eligible Purchaser may transmit a notice to EXCO setting forth the portion of the Offered Securities that such Eligible Purchaser elects to purchase (the “Notice of Acceptance”). (ii) To accept an Offer, in whole or in part, an Eligible Purchaser must promptly (and in any event not later than the close of business on the tenth (10th) Business Day after the day on which the Offer is received by such Eligible Purchaser) deliver a Notice of Acceptance to EXCO. In the event EXCO timely receives Notices of Acceptance for an aggregate number or amount of Offered Securities in excess of the number or amount of Offered Securities to be included in the Subsequent Placement, each Eligible Purchaser who timely returned its Notice of Acceptance shall complete be entitled to purchase up to the number or amount of such Offered Securities (the “Initial Securities”) equal to the number or amount of Offered Securities multiplied by a Subsequent Placement at fraction, (A) the numerator of which shall be the aggregate liquidation preference of all Eligible Shares then held by such Eligible Purchaser and (B) the denominator of which shall be the sum of the aggregate liquidation preference of all Eligible Shares held by all Eligible Purchasers who timely delivered a Notice of Acceptance. (iii) In the event EXCO timely receives Notices of Acceptance for an effective price per share aggregate number or amount of Offered Securities less than the then effective Exercise Price number or amount of Offered Securities to be included in the Subsequent Placement, EXCO shall deliver to each Eligible Purchaser who timely delivered a Notice of Acceptance pursuant to Section 5.09(a)(ii) a written notice (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive IssuanceSecond Offer”), as adjusted hereunder which Second Offer shall (if A) set forth the holder number or amount of Offered Securities not purchased by the Eligible Purchasers pursuant to Section 5.09(a)(ii) (the “Refused Securities”), (B) offer to issue and sell the Refused Securities to each such Eligible Purchaser, and (C) identify an address to which such Eligible Purchaser may transmit a notice to EXCO setting forth the portion of the Equity Refused Securities so that such Eligible Purchaser elects to purchase (the “Second Notice of Acceptance”). (iv) To accept a Second Offer, in whole or in part, an Eligible Purchaser must promptly (and in any event not later than the close of business on the fifth (5th) Business Day after the day on which the Second Offer is received by such Eligible Purchaser (the “Acceptance Date”)) deliver a Second Notice of Acceptance. In the event EXCO timely receives Second Notices of Acceptance for an aggregate number or amount of Refused Securities in excess of the number or amount of Refused Securities, each Eligible Purchaser who timely returned its Second Notice of Acceptance shall be entitled to purchase, in addition to such Eligible Purchaser’s Initial Securities, the number or amount of such Refused Securities equal to the number or amount of Refused Securities which such Eligible Purchaser has elected to purchase multiplied by a fraction, (A) the numerator of which is the aggregate liquidation preference of all Eligible Shares then held by such Purchaser and (B) the denominator of which is the sum of the aggregate liquidation preference of all Eligible Shares held by all Purchasers participating in the purchase of the Refused Securities. (v) If the Eligible Purchasers do not timely elect to acquire all of the Offered Securities on the terms set forth in the Offer, then EXCO shall have 120 days from the Acceptance Date to enter into a definitive purchase agreement to sell the Offered Securities to a third party at a price not less than the price specified in the Offer and otherwise on terms and conditions that are not materially less favorable to EXCO than those set forth in the Offer. (vi) Any purchase by the Eligible Purchasers of the Offered Securities is subject in all cases to the preparation, execution and delivery by EXCO and the Eligible Purchasers of a definitive purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to EXCO and the Eligible Purchasers; provided that EXCO and the Eligible Purchasers will use their good faith efforts to negotiate and execute such agreement within 30 days from the Acceptance Date. (b) The restrictions contained in Section 5.09(a) shall not apply to (i) equity securities issued shall at (A) in connection with any timeissuance of shares or grant of options to employees, whether officers, directors or consultants of EXCO or any of its Subsidiaries pursuant to a stock option plan or other incentive stock plan duly adopted by operation the Board of purchase price adjustmentsDirectors, reset provisions, floating conversion, (B) in connection with the exercise or exchange prices or otherwise, or due to warrantsconversion of any convertible securities, options or rights per share which is warrants issued and outstanding as of the date hereof or any Purchased Shares, or (C) in connection with such issuancea bona fide acquisition of another company, be entitled to receive shares the primary purpose of Common Stock at an effective price per share which is less than not to raise cash or (ii) debt incurred under any credit facility, including any syndicated facility, or term loans or notes offered, made or sold in the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date credit markets. (c) The rights 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 an Eligible Purchaser set forth in this Section 3(b) in respect of Exempt Issuances. During the Participation Right Period5.09 may not be assigned or transferred by any Purchaser, the Company shall notify the Holder in writing as promptly as reasonably possible following the issuance including any transferee of any Equity Securities subject Shares of a Purchaser, other than 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 an Affiliate 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 ExercisePurchaser.

Subsequent Placements. Subject to Section 3(i), if (a) If the Company, at any time during the one year period following the date of this Warrant Company consummates an equity financing (the “Participation Right PeriodNext Financing”) prior to the first anniversary of the initial Closing Date, each Purchaser may exchange all, but not less than all, of his, her or its Units for the equity securities issued in such Next Financing (the “Next Financing Securities”), and shall complete become subject to the terms and conditions of such Next Financing; provided that the exchange of the Purchaser’s Units for Next Financing Securities is permitted under the rules and regulations of the Trading Market then in effect. The number of Next Financing Securities into which a Subsequent Placement Purchaser’s Units may be exchanged shall be determined by dividing (a) the aggregate Per Unit Purchase Price at an effective which the Units being exchanged were issued, by (b) the price per share less than Next Financing Security at which such securities were issued in the then effective Exercise Price Next Financing. (such lower price, b) The Company shall provide the Purchasers written notice (the “Base Share Price” Exchange Notice”) of any proposed Next Financing at least ten (10) days prior to the closing of such Next Financing. Such notice shall include the terms and conditions of such issuances collectivelyFinancing, a “Dilutive Issuance”), as adjusted hereunder (if including the holder consideration to be paid to the Company for the issuance of the Equity Securities so issued Next Financing Securities. If a Purchaser shall at any timedecide to exchange his, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise her 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 Priceits Units for Next Financing Securities, 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 Purchaser shall notify the Holder Company in writing as promptly as reasonably possible following within ten (10) days after receipt of the issuance Exchange Notice. (c) In order to exchange Units for Next Financing Securities, each Purchaser shall be required to execute all agreements executed by the investors in the Next Financing (which in the sole discretion 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 are reasonably applicable to such Purchaser) and to deliver the certificate or certificates representing their shares of Series A Preferred Stock and their Warrants, duly endorsed for transfer or accompanied by a Dilutive Issuance Notice pursuant duly endorsed stock power (or, if such Purchaser alleges that such certificate or Warrant has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to this Section 3(b)the Company to indemnify the Company against any claim that may be made against the Company on account of the alleged loss, upon the occurrence of any Dilutive Issuance during the Participation Right Period, after the date theft or destruction of such Dilutive Issuance the Holder is entitled certificate) to the Base Share Price regardless of whether Company at the Holder accurately refers to the Base Share Price place designated in the Notice Exchange Notice. Each exchanging Purchaser also shall be required to execute and deliver such additional instruments and undertake such other actions as the Company may reasonably require to transfer such Units and issue Next Financing Securities in exchange therefore in accordance with the terms and conditions of Exercisethe Next Financing.

Subsequent Placements. Subject to Section 3(i), if (a) If the Company, at any time during the one year period following the date of this Warrant Company consummates an equity financing (the “Participation Right PeriodNext Financing”) prior to the first anniversary of the initial Closing Date, each Purchaser may exchange all, but not less than all, of his, her or its Units for the equity securities issued in such Next Financing (the “Next Financing Securities”), and shall complete become subject to the terms and conditions of such Next Financing; provided that the exchange of the Purchaser’s Units for Next Financing Securities is permitted under the rules and regulations of the Trading Market then in effect. The number of Next Financing Securities into which a Subsequent Placement Purchaser’s Units may be exchanged shall be determined by dividing (a) the aggregate Per Unit Purchase Price at an effective which the Units being exchanged were issued, by (b) the price per share less than Next Financing Security at which such securities were issued in the then effective Exercise Price Next Financing. (such lower price, b) The Company shall provide the Purchasers written notice (the “Base Share Price” and Exchange Notice”) of any proposed Next Financing at least ten (10) days following the initial closing of such issuances collectively, a Next Financing (the “Dilutive IssuanceNext Financing Initial Closing”). Such notice shall include the terms and conditions of such Financing, as adjusted hereunder (if including the holder consideration which was paid to the Company for the issuance of the Equity Securities so issued Next Financing Securities. If a Purchaser shall at any timedecide to exchange his, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise her 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 Priceits Units for Next Financing Securities, 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 Purchaser shall notify the Holder Company in writing as promptly as reasonably possible following within ten (10) days after receipt of the issuance Exchange Notice. (c) In order to exchange Units for Next Financing Securities, each Purchaser shall be required to execute all agreements executed by the investors in the Next Financing (which in the sole discretion 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 are reasonably applicable to such Purchaser) and to deliver the certificate or certificates representing their shares of Series B Preferred Stock and their Warrants, duly endorsed for transfer or accompanied by a Dilutive Issuance Notice duly endorsed stock power (or, if such Purchaser alleges that such certificate or Warrant has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Company to indemnify the Company against any claim that may be made against the Company on account of the alleged loss, theft or destruction of such certificate) to the Company at the place designated in the Exchange Notice. Each exchanging Purchaser also shall be required to execute and deliver such additional instruments and undertake such other actions as the Company may reasonably require to transfer such Units and issue Next Financing Securities in exchange therefore in accordance with the terms and conditions of the Next Financing. (d) Regardless of whether the terms of the Next Financing explicitly contemplate a closing subsequent to the Next Financing Initial Closing, if any Purchasers elect to exchange their Units for Next Financing Securities pursuant to this Section 3(b)4.6, upon then the occurrence of any Dilutive Issuance during the Participation Right Period, after the date of Company shall cause there to be a subsequent closing in which 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 ExercisePurchasers may exchange their Units.

Subsequent Placements. Subject (a) From the date hereof until 90 Trading Days after 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"). (b) The Company will not, directly or indirectly, effect any Subsequent Placement from the date hereof until 240 days after the Effective Date, unless (i) the Company delivers to each of the Purchasers a written notice (the "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 tenth Trading Day after its receipt of the Subsequent Placement Notice of its willingness to provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on the same terms set forth in the Subsequent Placement Notice. If the Purchasers shall fail to so notify the Company of their willingness to participate in the full Subsequent Placement, the Company may effect such Subsequent Placement on the terms and to one year period following or more of the Persons set forth in the 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 first refusal set forth above in this paragraph (b), if the 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 40 days after the date of this Warrant (the “Participation Right Period”), shall complete a initial Subsequent Placement at Notice with the one or more of 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 effective amount equal to such Purchaser's pro rata portion of the aggregate purchase price per share less than paid for the then effective Exercise Price Securities under this Agreement, but the Company shall not be required to accept financing from the Purchasers in an amount in excess of the amount set forth in the Subsequent Placement Notice. (c) Except for (i) Registrable Securities, as defined in the Registration Rights Agreement, and (ii) shares of Common Stock issuable upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible securities of the Company, in each case disclosed in Schedule 3.1(g) or pursuant to the anti-dilution provisions contained in any such lower pricederivative securities, but not with respect to any amendment or modification thereto, the “Base Share Price” and such issuances collectivelyCompany shall not, a “Dilutive Issuance”)until 90 Trading Days after the Conversion Shares Effective Date, as adjusted hereunder (if without the holder prior written consent of the Equity Purchasers, file a registration statement with the Commission with respect to any securities of the Company or the Subsidiaries other than a registration statement on Form S-8. (d) The 90 Trading Day period set forth in the foregoing paragraphs of this Section 4.7 shall be extended for (i) the number of Trading Days during such periods in which trading in the Common Stock is suspended by any Trading Market, and (ii) the number of Trading Days after the Effective Date during which (A) the Conversion Shares Registration Statement is not effective or (B) the prospectus included in the Conversion Shares Registration Statement may not be used by the holders thereof for the resale of Registrable Securities so issued thereunder. (e) The restrictions contained in paragraphs (a) and (b) of this Section 4.7 shall at not apply to (i) the granting of options to employees, officers and directors of the Company pursuant to any timestock option plan duly adopted by the Company or to the issuance of Common Stock upon exercise of such options or (ii) the issuance of any securities under the Motorola Agreement, whether by operation the PPG Agreement or the issuance of purchase price adjustments, reset provisions, floating conversion, Common Stock upon the exercise or exchange prices or otherwiseconversion of any such securities, or due (iii) up to warrants, options or rights per share which is 1,000,000 shares of Common Stock issued in connection with such issuanceany contractual strategic alliances approved by the Company's Board of Directors, be entitled and (iv) any securities issuable upon the exercise or conversion of, or pursuant to receive shares of Common Stock at an effective price per share which is less than the Exercise Priceanti-dilution provisions contained within, such issuance shall be deemed any option, restricted stock awards, preferred stock or warrants outstanding on the date hereof (but not to have occurred for less than the Exercise Price on such date of the Dilutive Issuanceextent amended hereafter), 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 all of which are issued. Notwithstanding the foregoing, no adjustments shall be made, paid or issued during the Participation Right Period under this Section 3(bset forth on Schedule 3.1(g) 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 Exercisehereto.

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 Common Stock or Common Stock Equivalents to be issued in such Subsequent Placement. "Pro Rata Portion" is the ratio of (x) fifty percent (50%) of such Purchaser's Purchase Price regardless and (y) the sum of whether the Holder accurately refers Purchase Prices paid by Purchasers providing financing pursuant to the Base Share Price in the Notice of ExerciseSubsequent Placement Notice.

Subsequent Placements. Subject (a) So long as any Debentures are outstanding, the Borrower will not, directly or indirectly, effect any, 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 the Borrower shall have first complied with this Section 4.5(a). (i) The Borrower shall not conduct any Subsequent Placement until six months shall have elapsed from the Closing Date. (ii) The Borrower shall deliver to each Lender which at the time of the proposed Subsequent Placement holds a Debenture or Debentures (a “Qualified Lender”) 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, 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 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 Qualified Lender (A) a pro rata portion of the Offered Securities, based on such Qualified Lender’s pro rata portion of the aggregate purchase price paid by any other Qualified Lenders for all of the Securities purchased hereunder (it being understood that if there shall be only one Qualified Lender, then such Qualified Lender’s pro-rata portion of the Offered Securities shall equal 100%) (the “Basic Amount”), and (B) with respect to each Qualified Lender that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of any other Qualified Lenders as such Qualified Lender shall indicate it will purchase or acquire should any other Qualified Lenders subscribe for less than their Basic Amounts (the “Undersubscription Amount”). Notwithstanding anything to the contrary set forth in any Transaction Document, in the event that any Offer pertaining to a Subsequent Placement is provided prior to the one year period following anniversary of the date Closing Date, then the price at which a Qualified Lender may participate in such Subsequent Placement shall be the lesser of this Warrant (a) the price and terms described in the Offer and (b) the Conversion Price then in effect under the Debentures. In furtherance of the immediately prior sentence, if the Offer is for Common Stock, then the price per share at which a Qualified Lender may acquire such stock shall equal the Conversion Price then in effect, and if for Common Stock Equivalents, then the price at which a Qualified Lender may acquire such Common Stock Equivalents (or the Common Stock issuable in respect thereof) shall be determined by reference to the Conversion Price then in effect. (iii) To accept an Offer, in whole or in part, a Qualified Lender must deliver a written notice to the Borrower prior to 5:00 p.m., New York time, on the fifth Trading Day after the Offer, setting forth the portion of the Qualified Lender’s Basic Amount that such Qualified Lender elects to purchase and, if such Qualified Lender shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Qualified Lender elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Qualified Lenders in the aggregate are less than the total of all of the Basic Amounts, then each Qualified Lender 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 “Participation Right PeriodAvailable Undersubscription Amount”), each Qualified Lender who has subscribed for any Undersubscription Amount shall complete be entitled to purchase that portion of the Available Undersubscription Amount as the Basic Amount of such Qualified Lender bears to the total Basic Amounts of all Qualified Lenders that have subscribed for Undersubscription Amounts, subject to rounding by the Board of Directors to the extent its deems reasonably necessary. (iv) The Borrower shall have five (5) Trading Days from the expiration of the period set forth in Section 4.5(a)(ii) above to issue, sell or exchange all or any part of such Offered Securities as to which a Subsequent Placement Notice of Acceptance has not been given by the Qualified Lenders (the “Refused Securities”), but only to the offerees described in the Offer (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Borrower than those set forth in the Offer. (v) In the event the Borrower shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 4.5(a)(iii) above), then each Qualified Lender may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an effective price per share amount that shall be not less than the then effective Exercise Price number or amount of the Offered Securities that the Qualified Lender elected to purchase pursuant to Section 4.5(a)(ii) above multiplied by a fraction, (i) the numerator of which shall be the number or amount of Offered Securities the Borrower actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Qualified Lenders pursuant to Section 4.5 (a)(ii) above prior to such lower pricereduction) and (ii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Qualified Lender so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the “Base Share Price” Borrower may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such issuances collectivelysecurities have again been offered to the Qualified Lenders in accordance with Section 4.5(a)(i) above. (vi) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, the Qualified Lenders shall acquire from the Borrower, and the Borrower shall issue to the Qualified Lenders, the number or amount of Offered Securities specified in the Notices of Acceptance, as reduced pursuant to Section 4.5(a)(iv) above if the Qualified Lenders have so elected, upon the terms and conditions specified in the Offer. The purchase by the Qualified Lenders of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Borrower and the Qualified Lenders of a “Dilutive Issuance”purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to the Qualified Lenders, the Borrower and their respective counsel. (vii) Any Offered Securities not acquired by the Qualified Lenders or other persons in accordance with Section 4.5(a)(iii) above may not be issued, sold or exchanged until they are again offered to the Qualified Lenders under the procedures specified in this Agreement. (b) The restrictions contained in paragraph (a) of this Section shall not apply to: (i) the granting of options to employees, officers and directors of the Borrower pursuant to any stock option plan duly adopted by the Borrower or to the issuance of Common Stock upon exercise of such options (except to the extent that any such securities are issued to Xxxxx Xxxxxxxxx), (xx) issuances of Common Stock pursuant to the conversion or exercise (as adjusted hereunder applicable) of Previous Debentures (if pursuant to a request by 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 warrantsthereof), options or rights per share warrants which is issued are outstanding on the date hereof, as set forth in connection with Schedule 3.1(m) (except to the extent that the resale of such issuancesecurities would be restricted under the Letter Agreement), be entitled to receive (iii) any underwritten public offering of the Common Stock for an aggregate price in excess of $10,000,000 (which shall not include equity lines of credit or similar transactions), (iv) any issuance of shares of Common Stock at an in satisfaction in full of all accounts payable of the Borrower to a particular vendor incurred in the ordinary course, provided, that that effective price per share which is less than the Exercise Price, price utilized in any such issuance shall be deemed to have occurred for greater than the greater of (x) 90% of the then applicable Closing Price and (y) the then effective Conversion Price of the Debenture, and that the Borrower shall not issue shares with an aggregate effective per share price in excess of $3,000,000 under any one or more such issuances or (v) any Subsequent Placement offered at a time when less than the Exercise Price on such date $3,000,000 aggregate principal amount 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 Debentures is entitled to the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exerciseoutstanding.

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 amount set forth in the Subsequent Placement Notice. (b) The restrictions contained in paragraph (a) of this Section shall not apply to (i) the granting of options or issuance of Common Stock to employees, consultants, officers and directors of the Company pursuant to any stock option or purchase plan duly adopted by the Company or to the Base Share Price issuance of Common Stock upon exercise of such options or (ii) to the issuance of Common Stock in the Notice connection with strategic partnerships, up to an aggregate of Exercise462,962 shares of Common Stock.