Common use of Tranche I Shares Clause in Contracts

Tranche I Shares. Within 90 days following the last day of the Tranche I Vesting Period, Buyer shall deliver and convey to Seller 3,933,333 shares1/ of Company Common Stock (subject to proportionate adjustment for stock splits, stock dividends, stock combinations (including the Reverse Split) and similar events after the Effective Date) (the “Tranche I Shares”), free and clear of all Encumbrances (other than any Encumbrance created by Seller). For purposes hereof, “Tranche I Vesting Period” means the first period of ten (10) consecutive Trading Days commencing after the Commencement Date and ending prior to the Expiration Date on each of at least seven (7) of which the Common Stock Market Value is equal to or greater than $0.63562/ (subject to proportionate adjustment for stock splits, stock dividends, stock combinations (including the Reverse Split) and similar events after the Effective Date). In the event that, prior to the occurrence of a Tranche I Vesting Period, the Company is consummating a merger or consolidation with or into another entity in which the Company is not the surviving entity (a “Sale Transaction”) and in which the value of the consideration to be received for each outstanding share of Company Common Stock by the holders thereof is equal to or greater than $0.6356 (subject to proportionate adjustment for stock splits, stock dividends, stock combinations (including the Reverse Split) and similar events after the Effective Date), as determined in good faith by the Company’s board of directors (the “Board”), Buyer shall deliver the Tranche I Shares to Seller prior to such consummation as if the Tranche I Vesting Period had occurred immediately prior thereto. In the event that, prior to the occurrence of a Tranche I Vesting Period, the Company shall consummate a Sale Transaction in which the value of the consideration to be received for each outstanding share of Company Common Stock by the holders thereof is less than $0.6356, as determined in good faith by the Board, then, immediately upon consummation of such Sale Transaction, any right of Seller to receive from Buyer, and any obligation of Buyer to deliver to Seller, the Tranche I Shares shall terminate and be of no further force or effect.

Tranche I Shares. Within 90 days following the last day of the Tranche I Vesting PeriodDate, Buyer shall deliver and convey to Seller 3,933,333 shares1/ 112,530 shares of Company Common Stock (subject to proportionate adjustment for stock splits, stock dividends, stock combinations (including the Reverse Split) and similar events after the Effective Sale Closing Date) (the “Tranche I Shares”), free and clear of all Encumbrances (other than any Encumbrance created by Seller). For purposes hereof, “Tranche I Vesting PeriodDate” means shall mean the first earlier of (i) the last of any seven (7) Valuation Dates, within any period of ten (10) or fewer consecutive Trading Days commencing Valuation Dates that commence after the Commencement Date and ending prior to the Expiration Date Date, on each of at least seven (7) of which the Common Stock Market Value is equal to or greater than $0.63562/ 22.2162 (subject to proportionate adjustment for stock splits, stock dividends, stock combinations (including the Reverse Split) and similar events after the Sale Closing Date) (the “Tranche I Vesting Threshold”), (ii) the first date, prior to the Expiration Date, on which the Company files an Annual Report on Form 10-K for a fiscal year of the Company ending on or after December 31, 2012, in connection with which a Valuation was prepared and delivered to each of Seller and Buyer, which Valuation determines that the value of a share of Company Common Stock is greater than or equal to the Tranche I Vesting Threshold, and (iii) the first date, after the Commencement Date and prior to the Expiration Date, on which the Company or Buyer consummates a sale of Company Common Stock for cash to one or more Persons that are not Affiliates of the Company in a capital raising transaction at an Effective DatePrice Per Share greater than or equal to the Tranche I Vesting Threshold; excluding for purposes of this subsection (iii), sales of Company Common Stock by Buyer in ordinary brokerage transactions affected on a Principal Market. In the event that, prior to the occurrence of a Tranche I Vesting PeriodDate and the Expiration Date, the Company is consummating a merger or consolidation with or into another entity in which the Company is not the surviving entity (a “Sale Transaction”) and in which the value of the consideration to be received for each outstanding share of Company Common Stock by the holders thereof is equal to or greater than $0.6356 (subject to proportionate adjustment for stock splits, stock dividends, stock combinations (including the Reverse Split) and similar events after the Effective Date)Tranche I Vesting Threshold, as determined in good faith by the Company’s board of directors (the “Board”), Buyer shall deliver the Tranche I Shares to Seller prior to such consummation as if the Tranche I Vesting Period Date had occurred immediately prior thereto. In the event that, prior to the occurrence of a Tranche I Vesting PeriodDate, the Company shall consummate a Sale Transaction in which the value of the consideration to be received for each outstanding share of Company Common Stock by the holders thereof is less than $0.6356the Tranche I Vesting Threshold, as determined in good faith by the Board, then, immediately upon consummation of such Sale Transaction, any right of Seller to receive from Buyer, and any obligation of Buyer to deliver to Seller, the Tranche I Shares shall terminate and be of no further force or effect.