OR THE
CLOSING SALE PRICE, AS THE CASE MAY BE, OF SUCH SECURITY ON SUCH DATE SHALL BE
THE FAIR MARKET VALUE AS MUTUALLY DETERMINED BY THE COMPANY AND THE HOLDER.
IF
THE COMPANY AND THE HOLDER ARE UNABLE TO AGREE UPON THE FAIR MARKET VALUE OF
SUCH SECURITY, THEN SUCH DISPUTE SHALL BE RESOLVED PURSUANT TO SECTION 12.
ALL
SUCH DETERMINATIONS TO BE APPROPRIATELY ADJUSTED FOR ANY STOCK DIVIDEND, STOCK
SPLIT, STOCK COMBINATION OR OTHER SIMILAR TRANSACTION DURING THE APPLICABLE
CALCULATION PERIOD.
(D)
"COMMON STOCK" MEANS (I) THE COMPANY'S SHARES OF COMMON STOCK, PAR
VALUE $0.0001 PER SHARE, AND (II) ANY SHARE CAPITAL INTO WHICH SUCH COMMON STOCK
SHALL HAVE BEEN CHANGED OR ANY SHARE CAPITAL RESULTING FROM A RECLASSIFICATION
OF SUCH COMMON STOCK.
(E)
"COMMON STOCK DEEMED OUTSTANDING" MEANS, AT ANY GIVEN TIME, THE
NUMBER OF SHARES OF COMMON STOCK ACTUALLY OUTSTANDING AT SUCH TIME, PLUS THE
NUMBER OF SHARES OF COMMON STOCK DEEMED TO BE OUTSTANDING PURSUANT TO SECTIONS
2(A)(I) AND 2(A)(II) HEREOF REGARDLESS OF WHETHER THE OPTIONS OR CONVERTIBLE
SECURITIES ARE ACTUALLY EXERCISABLE AT SUCH TIME, BUT EXCLUDING ANY SHARES OF
COMMON STOCK OWNED OR HELD BY OR FOR THE ACCOUNT OF THE COMPANY OR ISSUABLE UPON
CONVERSION AND EXERCISE, AS APPLICABLE, OF THE SPA SECURITIES AND THE WARRANTS.
15
(F)
"CONVERTIBLE SECURITIES" MEANS ANY STOCK OR SECURITIES (OTHER
THAN OPTIONS) DIRECTLY OR INDIRECTLY CONVERTIBLE INTO OR EXERCISABLE OR
EXCHANGEABLE FOR SHARES OF COMMON STOCK.
(G)
"ELIGIBLE MARKET" MEANS THE PRINCIPAL MARKET, THE NEW YORK STOCK
EXCHANGE, INC., THE AMERICAN STOCK EXCHANGE OR THE NASDAQ SMALLCAP MARKET.
(H)
"EXPIRATION DATE" MEANS THE DATE SIXTY-SIX MONTHS AFTER THE
ISSUANCE DATE OR, IF SUCH DATE FALLS ON A DAY OTHER THAN A BUSINESS DAY OR ON
WHICH TRADING DOES NOT TAKE PLACE ON THE PRINCIPAL MARKET (A "HOLIDAY"), THE
NEXT DATE THAT IS NOT A HOLIDAY.
(I)
"FUNDAMENTAL TRANSACTION" MEANS THAT THE COMPANY SHALL, DIRECTLY
OR INDIRECTLY, IN ONE OR MORE RELATED TRANSACTIONS, (I) CONSOLIDATE OR MERGE
WITH OR INTO (WHETHER OR NOT THE COMPANY IS THE SURVIVING CORPORATION) ANOTHER
PERSON, OR (II) SELL, ASSIGN, TRANSFER, CONVEY OR OTHERWISE DISPOSE OF ALL OR
SUBSTANTIALLY ALL OF THE PROPERTIES OR ASSETS OF THE COMPANY TO ANOTHER PERSON,
OR (III) ALLOW ANOTHER PERSON TO MAKE A PURCHASE, TENDER OR EXCHANGE OFFER THAT
IS ACCEPTED BY THE HOLDERS OF MORE THAN THE 50% OF THE OUTSTANDING SHARES OF
COMMON STOCK (NOT INCLUDING ANY SHARES OF COMMON STOCK HELD BY THE PERSON OR
PERSONS MAKING OR PARTY TO, OR ASSOCIATED OR AFFILIATED WITH THE PERSONS MAKING
OR PARTY TO, SUCH PURCHASE, TENDER OR EXCHANGE OFFER), OR (IV) CONSUMMATE A
STOCK PURCHASE AGREEMENT OR OTHER BUSINESS COMBINATION (INCLUDING, WITHOUT
LIMITATION, A REORGANIZATION, RECAPITALIZATION, SPIN-OFF OR SCHEME OF
ARRANGEMENT) WITH ANOTHER PERSON WHEREBY SUCH OTHER PERSON ACQUIRES MORE THAN
THE 50% OF THE OUTSTANDING SHARES OF COMMON STOCK (NOT INCLUDING ANY SHARES OF
COMMON STOCK HELD BY THE OTHER PERSON OR OTHER PERSONS MAKING OR PARTY TO, OR
ASSOCIATED OR AFFILIATED WITH THE