Common use of Initial Tranche Clause in Contracts

Initial Tranche. (i) Subject to the terms and conditions of this Agreement, each Purchaser (a “Noteholder Purchaser”) that is a holder of one or more outstanding convertible promissory notes previously issued by the Company as reflected opposite such Purchaser’s name under the heading “Convertible Notes Amount Owed” on Exhibit A (in the case of such Noteholder Purchaser, the “Applicable Convertible Note(s)”) hereby agrees that, at the Initial Tranche Closing, the full amount owed by the Company to such Noteholder Purchaser through and including the date of the Initial Tranche Closing under such Noteholder Purchaser’s Applicable Convertible Note(s), which full amount owed is set forth opposite such Noteholder Purchaser’s name under the heading “Convertible Notes Amount Owed” on Exhibit A, shall convert into that number of shares of the Company’s Series D Preferred Stock, par value $0.001 per share (“Series D Preferred Stock”), set forth opposite such Noteholder Purchaser’s name under the heading “Note Conversion Shares” on Exhibit A (in the case of each Noteholder Purchaser, the “Note Conversion Shares” and, collectively with the Note Conversion Shares of all other Noteholder Purchasers, the “Total Note Conversion Shares”), at a conversion price per share equal to $0.4414 (the “Note Conversion Price”). Subject to the terms and conditions of this Agreement, the Company hereby agrees that, at the Initial Tranche Closing, the Company shall sell and issue to each Noteholder Purchaser the Note Conversion Shares to which such Noteholder Purchaser is entitled pursuant to the foregoing provisions of this Section 1.1(b)(i) upon conversion of the full amount owed by the Company to such Noteholder Purchaser through and including the date of the Initial Tranche Closing under such Noteholder Purchaser’s Applicable Convertible Notes. The number of Total Note Conversion Shares to be issued to the Noteholder Purchasers at the Initial Tranche Closing shall be 10,344,201. Notwithstanding anything to the contrary express or implied in the Applicable Convertible Note(s) of each Noteholder Purchaser, each Noteholder Purchaser hereby agrees that interest shall accrue under the Applicable Convertible Note(s) of such Noteholder Purchaser only through and including April 30, 2014. Upon the sale and issuance of the Note Conversion Shares by the Company to each Noteholder Purchaser at the Initial Tranche Closing pursuant to, and in accordance with, the terms and conditions of this Agreement (including, without limitation, this Section 1.1(b)(i)), the Applicable Convertible Note(s) of such Noteholder Purchaser shall be deemed satisfied in full and the Company shall not owe any amount or have any other obligation of any kind under such Applicable Convertible Note(s), and such Applicable Convertible Note(s) shall be deemed cancelled, terminated and of no further force or effect whatsoever. Each Noteholder Purchaser hereby agrees that, in the event that any provision of this Agreement (including, without limitation, this Section 1.1(b)(i)) conflicts with or is inconsistent with the terms and provisions of the Applicable Convertible Note(s) of any Noteholder Purchaser, then the conflicting or inconsistent terms and provisions of this Agreement (including, without limitation, this Section 1.1(b)(i)) (1) shall be deemed to constitute an amendment or modification of the conflicting or inconsistent terms and provisions of the Applicable Convertible Note(s) of any Noteholder Purchaser and (2) shall be deemed to supersede and control any such conflicting or inconsistent terms and provisions of the Applicable Convertible Note(s). (ii) Subject to the terms and conditions of this Agreement, at the Initial Tranche Closing, the Company shall issue and sell to each Purchaser, and each Purchaser, acting severally and not jointly, shall purchase from the Company, that number of shares of the Company’s Series D Preferred Stock set forth opposite each such Purchaser’s name under the heading “Initial Tranche Shares” on Exhibit A, at a purchase price per share equal to $0.588656 (such purchase price per share, subject to proportionate and equitable adjustment upon any stock split, stock dividend, reverse stock split or other similar event that affects or involves the Series D Preferred Stock, being hereinafter referred to as the “Series D Price”). The aggregate number of shares of Series D Preferred Stock issued to the Purchasers at the Initial Tranche Closing pursuant to this Section 1.1(b)(ii) shall be 42,469,626 and the aggregate purchase price payable by the Purchasers at the Initial Tranche Closing for such aggregate number of shares shall be $25,000,000.27. For purposes of this Agreement, the term “Initial Tranche Shares” shall mean, collectively, (1) the Total Note Conversion Shares and (2) the aggregate number of shares of Series D Preferred Stock issued to the Purchasers at the Initial Tranche Closing pursuant to this Section 1.1(b)(ii), subject to, in the case of clauses (1) and (2), proportionate and equitable adjustment upon any stock split, stock dividend, reverse stock split or other similar event that affects or involves the Series D Preferred Stock.