Common use of Consideration for Stock Clause in Contracts

Consideration for Stock. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for cash, the consideration received therefor shall be deemed to be the gross amount received by the Company therefor. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the fair value of such consideration as determined in good faith by the Board of Directors of the Company. If Common Stock, Options or Convertible Securities shall be issued or sold by the Company and, in connection therewith, other Options or Convertible Securities (the “Additional Rights”) are issued, together comprising one integral transaction in which no specific consideration is allocated to such Additional Rights, (x) such Additional Rights will be deemed to have been issued for consideration equal to the Black Scholes Consideration Value thereof and (y) the other securities issued or sold or deemed to have been issued or sold in such integrated transaction shall be deemed to have been issued for consideration equal to the difference of (I) the aggregate consideration received or receivable by the Company minus (II) the Black Scholes Consideration Value of each such Additional Rights. For the purpose of this subsection 3(e)(ii)(5) “Black Scholes Consideration Value” means the value of the applicable Additional Rights (as the case may be) as of the date of issuance thereof calculated using the Black Scholes Option Pricing Model obtained from the “OV” function on Bloomberg utilizing (i) an underlying price per share equal to the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the public announcement of the execution of definitive documents with respect to the issuance of such Additional Rights (as the case may be), (ii) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of such Additional Rights (as the case may be) as of the date of issuance of such Additional Rights (as the case may be), (iii) a zero cost of borrow and (iv) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the date of issuance of such Additional Rights (as the case may be). The Board of Directors of the Company shall respond promptly, in writing, to an inquiry by the Holder as to the fair market value of the Additional Rights. In the event that the Board of Directors of the Company and the Holder are unable to agree upon the fair market value of the Additional Rights, the Company and the Holder shall jointly select an appraiser who is experienced in such matters. The decision of such appraiser shall be final and conclusive, and the cost of such appraiser shall be borne by the Company.

Consideration for Stock. In case any shares of Common Stock, ----------------------- Options or Convertible Securities shall be issued or sold for cash, or offered by the Company for subscription, the consideration received therefor shall be deemed to be the gross amount received by the Company therefortherefor plus any additional consideration payable to the Company upon the exercise, conversion or exchange of such Common Stock, Options or Convertible Securities, excluding any amounts paid or receivable for accrued interest or accrued dividends and after deducting therefrom any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the fair value of such consideration as determined in good faith by the Board of Directors of the Company, after deducting any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If The amount of consideration deemed to be received by the Company pursuant to the foregoing provisions of this paragraph 3D(5) upon any issuance and/or sale, pursuant to an established compensation plan of the Company, to directors, officers or employees of the Company in connection with their employment, of shares of Common Stock, Options or Convertible Securities, shall be increased by the amount of any tax benefit realized by the Company as a result of such issuance and/or sale, the amount of such tax benefit being the amount by which the Federal and/or State income or other tax liability of the Company shall be reduced by reason of any deduction or credit in respect of such issuance and/or sale. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the fair value as determined by the Board of Directors of the Company andof such portion of the assets and business of the non-surviving corporation as such Board shall determine to be attributable to such Common Stock, in connection therewith, other Options or Convertible Securities (as the “Additional Rights”) are issuedcase may be. In case any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Additional RightsOptions by the parties thereto, (x) such Additional Rights will be deemed to have been issued for consideration equal to the Black Scholes Consideration Value thereof and (y) the other securities issued or sold or deemed to have been issued or sold in such integrated transaction Options shall be deemed to have been issued without consideration. In the event of any consolidation or merger of the Company in which the Company is not the surviving corporation or in the event of any sale of all or substantially all of the assets of the Company for stock or other securities of any corporation, the Company shall be deemed to have issued a number of shares of its Common Stock for stock or securities of the other corporation computed on the basis of the actual exchange ratio on which the transaction was predicated and for a consideration equal to the difference fair market value on the date of (I) such transaction of such stock or securities of the aggregate other corporation, and if any such calculation results in adjustment of the Warrant Purchase Price, the determination of the number of shares of Common Stock receivable upon exercise of the Warrants immediately prior to such merger, consolidation or sale, for purposes of this paragraph 3D, shall be made after giving effect to such adjustment of the Warrant Purchase Price. In all cases where the amount of consideration received or receivable by the Company minus (II) the Black Scholes Consideration Value of each such Additional Rights. For the purpose of this subsection 3(e)(ii)(5) “Black Scholes Consideration Value” means the value of the applicable Additional Rights (as the case may be) as of the date of issuance thereof calculated using the Black Scholes Option Pricing Model obtained from the “OV” function on Bloomberg utilizing (i) an underlying price per share equal to the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the public announcement of the execution of definitive documents with respect to upon the issuance or sale of such Additional Rights (as any Common Stock, Options, or Convertible Securities is to be determined by the case may be), (ii) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of such Additional Rights (as the case may be) as of the date of issuance of such Additional Rights (as the case may be), (iii) a zero cost of borrow and (iv) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the date of issuance of such Additional Rights (as the case may be). The Board of Directors of the Company Company, the Board shall respond promptlynotify the holder of this Warrant of its determination of the consideration prior to payment or accepting receipt thereof. If, in writingwithin ten days after receipt of said notice, the holder of this Warrant shall notify the Board of any objection to an inquiry by the Holder as to such determination of consideration, a determination of the fair market value of the Additional Rights. In consideration will then be made by arbitration in accordance with the event that the Board of Directors Rules of the Company and American Arbitration Association, by an arbitrator in the Holder are unable to agree upon the fair market value City of the Additional RightsSan Francisco, the Company and the Holder shall jointly select an appraiser who is experienced in such matters. The decision of such appraiser shall be final and conclusive, and the cost of such appraiser shall be borne by the CompanyCalifornia.

Consideration for Stock. In case any ----------------------- shares of Common Stock, Options or Convertible Securities shall be issued or sold for cash, the consideration received therefor shall be deemed to be the gross net amount received by the Company therefor, after deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the fair value of such consideration as determined in good faith by the Board of Directors of the Company, after deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued for such consideration as determined in good faith by the Board of Directors of the Company. If Common Stock, Options or Convertible Securities shall be issued or sold by the Company and, in connection therewith, other Options or Convertible Securities (the “Additional Rights”"ADDITIONAL RIGHTS") are issued, together comprising one integral transaction in which no specific then the consideration is allocated to such Additional Rights, (x) such Additional Rights will be deemed to have been issued for consideration equal to the Black Scholes Consideration Value thereof and (y) the other securities issued or sold received or deemed to have been issued or sold in such integrated transaction shall be deemed to have been issued for consideration equal to the difference of (I) the aggregate consideration received or receivable by the Company minus (II) shall be reduced by the Black Scholes Consideration Value of each such Additional Rights. For the purpose of this subsection 3(e)(ii)(5) “Black Scholes Consideration Value” means the fair market value of the applicable Additional Rights (as the case may be) as of the date of issuance thereof calculated determined using the Black Black-Scholes Option Pricing Model obtained from option pricing model or another method mutually agreed to by the “OV” function on Bloomberg utilizing (i) an underlying price per share equal to the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the public announcement of the execution of definitive documents with respect to the issuance of such Additional Rights (as the case may be), (ii) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of such Additional Rights (as the case may be) as of the date of issuance of such Additional Rights (as the case may be), (iii) a zero cost of borrow and (iv) an expected volatility equal to the greater of 100% Company and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the date of issuance of such Additional Rights (as the case may beHolder). The Board of Directors of the Company shall respond promptly, in writing, to an inquiry by the Holder Holders as to the fair market value of the Additional Rights. In the event that the Board of Directors of the Company and the Holder Holders are unable to agree upon the fair market value of the Additional Rights, the Company and the Holder Holders shall jointly select an appraiser appraiser, who is experienced in such matters. The decision of such appraiser shall be final and conclusive, and the cost of such appraiser shall be borne evenly by the CompanyCompany and the Holder.

Consideration for Stock. In case ----------------------- any shares of Common Stock, Options or Convertible Securities shall be issued or sold for cash, the consideration received therefor shall be deemed to be the gross net amount received by the Company therefor, after deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the fair value of such consideration as determined in good faith by the Board of Directors of the Company, after deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued for such consideration as determined in good faith by the Board of Directors of the Company. If Common Stock, Options or Convertible Securities shall be issued or sold by the Company and, in connection therewith, other Options or Convertible Securities (the “Additional Rights”"ADDITIONAL RIGHTS") are issued, together comprising one integral transaction in which no specific then the consideration is allocated to such Additional Rights, (x) such Additional Rights will be deemed to have been issued for consideration equal to the Black Scholes Consideration Value thereof and (y) the other securities issued or sold received or deemed to have been issued or sold in such integrated transaction shall be deemed to have been issued for consideration equal to the difference of (I) the aggregate consideration received or receivable by the Company minus (II) shall be reduced by the Black Scholes Consideration Value of each such Additional Rights. For the purpose of this subsection 3(e)(ii)(5) “Black Scholes Consideration Value” means the fair market value of the applicable Additional Rights (as the case may be) as of the date of issuance thereof calculated determined using the Black Black-Scholes Option Pricing Model obtained from option pricing model or another method mutually agreed to by the “OV” function on Bloomberg utilizing (i) an underlying price per share equal to the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the public announcement of the execution of definitive documents with respect to the issuance of such Additional Rights (as the case may be), (ii) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of such Additional Rights (as the case may be) as of the date of issuance of such Additional Rights (as the case may be), (iii) a zero cost of borrow and (iv) an expected volatility equal to the greater of 100% Company and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the date of issuance of such Additional Rights (as the case may beHolder). The Board of Directors of the Company shall respond promptly, in writing, to an inquiry by the Holder Holders as to the fair market value of the Additional Rights. In the event that the Board of Directors of the Company and the Holder Holders are unable to agree upon the fair market value of the Additional Rights, the Company and the Holder Holders shall jointly select an appraiser appraiser, who is experienced in such matters. The decision of such appraiser shall be final and conclusive, and the cost of such appraiser shall be borne evenly by the CompanyCompany and the Holder.

Consideration for Stock. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for cash, the consideration received therefor shall be deemed to be the gross net amount received by the Company therefor, after deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the fair value of such consideration as determined in good faith by the Board of Directors of the Company, after deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If In case any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued for such consideration as determined in good faith by the Board of Directors of the Company. In situations other than those covered by the immediately preceding sentence, if Common Stock, Options or Convertible Securities shall be issued or sold by the Company and, in connection therewith, other Options or Convertible Securities (the “"Additional Rights”") are issued, together comprising one integral transaction in which no specific then the consideration is allocated to such Additional Rights, (x) such Additional Rights will be deemed to have been issued for consideration equal to the Black Scholes Consideration Value thereof and (y) the other securities issued or sold received or deemed to have been issued or sold in such integrated transaction shall be deemed to have been issued for consideration equal to the difference of (I) the aggregate consideration received or receivable by the Company minus (II) shall be reduced by the Black Scholes Consideration Value of each such Additional Rights. For the purpose of this subsection 3(e)(ii)(5) “Black Scholes Consideration Value” means the fair market value of the applicable Additional Rights (as the case may be) as of the date of issuance thereof calculated determined using the Black Black-Scholes Option Pricing Model obtained from option pricing model or another method mutually agreed to by the “OV” function on Bloomberg utilizing (i) an underlying price per share equal to the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the public announcement of the execution of definitive documents with respect to the issuance of such Additional Rights (as the case may be), (ii) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of such Additional Rights (as the case may be) as of the date of issuance of such Additional Rights (as the case may be), (iii) a zero cost of borrow and (iv) an expected volatility equal to the greater of 100% Company and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the date of issuance of such Additional Rights (as the case may beWarrantholder). The Board of Directors of the Company shall respond promptly, in writing, to an inquiry by the Holder Warrantholder as to the fair market value of the Additional Rights. In the event that the Board of Directors of the Company and the Holder Warrantholder are unable to agree upon the fair market value of the Additional Rights, the Company and the Holder Warrantholder shall jointly select an appraiser appraiser, who is experienced in such matters. The decision of such appraiser shall be final and conclusive, and the cost of such appraiser shall be borne evenly by the CompanyCompany and the Warrantholder.

Consideration for Stock. In case any shares of Common Stock, Options or Convertible Securities shall be Stock are issued or sold sold, or deemed issued or sold, for cash, the consideration received therefor shall be deemed to be the gross amount received or to be received by the Company therefortherefor (determined with respect to deemed issuances and sales in connection with Options and Convertible Securities in accordance with clause (A) of Section 7(a)(iii) or Section 7(a)(iv), as applicable) determined in the manner set forth below in this Section 7(a)(vi). In case If any shares of Common Stock, Options or Convertible Securities shall be Stock are issued or sold sold, or deemed issued or sold, for a consideration other than cash, then the amount of the consideration other than cash received by the Company shall be deemed to be the fair market value of such consideration received or to be received by the Company (determined with respect to deemed issuances and sales in connection with Options and Convertible Securities in accordance with clause (A) of Section 7(a)(iii) or Section 7(a)(iv), as applicable) as determined in good faith by the Board of Directors and Holders holding Warrants representing at least 66 2/3% of the Warrant Shares issuable upon exercise of all outstanding Warrants (a “Two-Thirds Interest”); provided that if the Company and a Two-Thirds Interest are unable to reach agreement as to the value of such consideration, then the value thereof will be determined by an independent appraisal by a mutually agreed to investment banker, the fees of which shall be borne by the Company. If Common Stock, any Options or Convertible Securities shall be are issued or sold by the Company and, in connection therewith, with the issuance and sale of other Options or Convertible Securities (securities of the “Additional Rights”) are issuedCompany, together comprising one integral transaction in which no specific consideration is allocated to such Additional RightsOptions by the parties thereto, (x) such Additional Rights will be deemed to have been issued for consideration equal to the Black Scholes Consideration Value thereof and (y) the other securities issued or sold or deemed to have been issued or sold in such integrated transaction Options shall be deemed to have been issued for such consideration equal to the difference of (I) the aggregate consideration received or receivable as determined in good faith by the Company minus (II) the Black Scholes Consideration Value of each such Additional Rights. For the purpose of this subsection 3(e)(ii)(5) “Black Scholes Consideration Value” means the value of the applicable Additional Rights (as the case may be) as of the date of issuance thereof calculated using the Black Scholes Option Pricing Model obtained from the “OV” function on Bloomberg utilizing (i) an underlying price per share equal to the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the public announcement of the execution of definitive documents with respect to the issuance of such Additional Rights (as the case may be), (ii) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of such Additional Rights (as the case may be) as of the date of issuance of such Additional Rights (as the case may be), (iii) a zero cost of borrow and (iv) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the date of issuance of such Additional Rights (as the case may be). The Board of Directors of the Company shall respond promptly, in writing, to an inquiry by the Holder as to the fair market value of the Additional Rights. In the event that the Board of Directors of and a Two-Thirds Interest; provided that if the Company and the Holder a Two-Thirds Interest are unable to agree upon reach agreement as to the fair market value of such consideration, then the Additional Rightsvalue thereof will be determined by an independent appraisal by a mutually agreed to investment banker, the Company and the Holder shall jointly select an appraiser who is experienced in such matters. The decision fees of such appraiser which shall be final and conclusive, and the cost of such appraiser shall be borne paid by the Company.

Consideration for Stock. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for cash, the consideration received therefor shall be deemed to be the gross net amount received by the Company Borrower therefor, after deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Borrower in connection therewith. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Company Borrower shall be deemed to be the fair value of such consideration as determined in good faith by the Board of Directors of the CompanyBorrower, after deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Borrower in connection therewith. In case any Options shall be issued in connection with the issue and sale of other securities of the Borrower, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued for such consideration as determined in good faith by the Board of Directors of the Borrower. If Common Stock, Options or Convertible Securities shall be issued or sold by the Company Borrower and, in connection therewith, other Options or Convertible Securities (the “Additional Rights”"ADDITIONAL RIGHTS") are issued, together comprising one integral transaction in which no specific then the consideration is allocated to such Additional Rights, (x) such Additional Rights will be deemed to have been issued for consideration equal to the Black Scholes Consideration Value thereof and (y) the other securities issued or sold received or deemed to have been issued or sold in such integrated transaction be received by the Borrower shall be deemed to have been issued for consideration equal to the difference of (I) the aggregate consideration received or receivable reduced by the Company minus (II) the Black Scholes Consideration Value of each such Additional Rights. For the purpose of this subsection 3(e)(ii)(5) “Black Scholes Consideration Value” means the fair market value of the applicable Additional Rights (as the case may be) as of the date of issuance thereof calculated determined using the Black Black-Scholes Option Pricing Model obtained from option pricing model or another method mutually agreed to by the “OV” function on Bloomberg utilizing (i) an underlying price per share equal to the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the public announcement of the execution of definitive documents with respect to the issuance of such Additional Rights (as the case may be), (ii) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of such Additional Rights (as the case may be) as of the date of issuance of such Additional Rights (as the case may be), (iii) a zero cost of borrow and (iv) an expected volatility equal to the greater of 100% Borrower and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the date of issuance of such Additional Rights (as the case may beLender). The Board of Directors of the Company Borrower shall respond promptly, in writing, to an inquiry by the Holder Lenders as to the fair market value of the Additional Rights. In the event that the Board of Directors of the Company Borrower and the Holder Lenders are unable to agree upon the fair market value of the Additional Rights, the Company Borrower and the Holder Lenders shall jointly select an appraiser appraiser, who is experienced in such matters. The decision of such appraiser shall be final and conclusive, and the cost of such appraiser shall be borne evenly by the CompanyBorrower and the Lender.

Consideration for Stock. In case any shares of ----------------------- Common Stock, Options or Convertible Securities shall be issued or sold for cash, the consideration received therefor shall be deemed to be the gross net amount received by the Company therefor, after deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the fair value of such consideration as determined in good faith by the Board of Directors of the Company, after deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued for such consideration as determined in good faith by the Board of Directors of the Company. If Common Stock, Options or Convertible Securities shall be issued or sold by the Company and, in connection therewith, other Options or Convertible Securities (the “Additional Rights”"ADDITIONAL RIGHTS") are issued, together comprising one integral transaction in which no specific then the consideration is allocated to such Additional Rights, (x) such Additional Rights will be deemed to have been issued for consideration equal to the Black Scholes Consideration Value thereof and (y) the other securities issued or sold received or deemed to have been issued or sold in such integrated transaction shall be deemed to have been issued for consideration equal to the difference of (I) the aggregate consideration received or receivable by the Company minus (II) shall be reduced by the Black Scholes Consideration Value of each such Additional Rights. For the purpose of this subsection 3(e)(ii)(5) “Black Scholes Consideration Value” means the fair market value of the applicable Additional Rights (as the case may be) as of the date of issuance thereof calculated determined using the Black Black-Scholes Option Pricing Model obtained from option pricing model or another method mutually agreed to by the “OV” function on Bloomberg utilizing (i) an underlying price per share equal to the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the public announcement of the execution of definitive documents with respect to the issuance of such Additional Rights (as the case may be), (ii) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of such Additional Rights (as the case may be) as of the date of issuance of such Additional Rights (as the case may be), (iii) a zero cost of borrow and (iv) an expected volatility equal to the greater of 100% Company and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the date of issuance of such Additional Rights (as the case may beLender). The Board of Directors of the Company shall respond promptly, in writing, to an inquiry by the Holder Lenders as to the fair market value of the Additional Rights. In the event that the Board of Directors of the Company and the Holder Lenders are unable to agree upon the fair market value of the Additional Rights, the Company and the Holder Lenders shall jointly select an appraiser appraiser, who is experienced in such matters. The decision of such appraiser shall be final and conclusive, and the cost of such appraiser shall be borne evenly by the CompanyCompany and the Lender.

Consideration for Stock. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for cash, the consideration received therefor shall be deemed to be the gross net amount received by the Company therefor, after deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the fair value of such consideration as determined in good faith by the Board of Directors of the Company, after deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued for such consideration as determined in good faith by the Board of Directors of the Company. If Common Stock, Options or Convertible Securities shall be issued or sold by the Company and, in connection therewith, other Options or Convertible Securities (the “Additional Rights”"ADDITIONAL RIGHTS") are issued, together comprising one integral transaction in which no specific then the consideration is allocated to such Additional Rights, (x) such Additional Rights will be deemed to have been issued for consideration equal to the Black Scholes Consideration Value thereof and (y) the other securities issued or sold received or deemed to have been issued or sold in such integrated transaction shall be deemed to have been issued for consideration equal to the difference of (I) the aggregate consideration received or receivable by the Company minus (II) shall be reduced by the Black Scholes Consideration Value of each such Additional Rights. For the purpose of this subsection 3(e)(ii)(5) “Black Scholes Consideration Value” means the fair market value of the applicable Additional Rights (as the case may be) as of the date of issuance thereof calculated determined using the Black Black-Scholes Option Pricing Model obtained from option pricing model or another method mutually agreed to by the “OV” function on Bloomberg utilizing (i) an underlying price per share equal to the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the public announcement of the execution of definitive documents with respect to the issuance of such Additional Rights (as the case may be), (ii) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of such Additional Rights (as the case may be) as of the date of issuance of such Additional Rights (as the case may be), (iii) a zero cost of borrow and (iv) an expected volatility equal to the greater of 100% Company and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the date of issuance of such Additional Rights (as the case may beHolder). The Board of Directors of the Company shall respond promptly, in writing, to an inquiry by the Holder Holders as to the fair market value of the Additional Rights. In the event that the Board of Directors of the Company and the Holder Holders are unable to agree upon the fair market value of the Additional Rights, the Company and the Holder Holders shall jointly select an appraiser appraiser, who is experienced in such matters. The decision of such appraiser shall be final and conclusive, and the cost of such appraiser shall be borne by the CompanyCompany provided that in the event that the valuation determined by Board of Directors is within ten percent (10%) the valuation determined by the appraiser, such costs shall be borne evenly by the Company and the Holder.

Consideration for Stock. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for cash, the consideration received therefor shall be deemed to be the gross amount received by the Company therefor. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the fair value of such consideration as determined in good faith by the Board of Directors of the Company. In case any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued for such consideration as determined in good faith by the Board of Directors of the Company. If Common Stock, Options or Convertible Securities shall be issued or sold by the Company and, in connection therewith, other Options or Convertible Securities (the “Additional Rights”) are issued, together comprising one integral transaction in which no specific then the consideration is allocated to such Additional Rights, (x) such Additional Rights will be deemed to have been issued for consideration equal to the Black Scholes Consideration Value thereof and (y) the other securities issued or sold received or deemed to have been issued or sold in such integrated transaction shall be deemed to have been issued for consideration equal to the difference of (I) the aggregate consideration received or receivable by the Company minus (II) shall be reduced by the Black Scholes Consideration Value of each such Additional Rights. For the purpose of this subsection 3(e)(ii)(5) “Black Scholes Consideration Value” means the fair market value of the applicable Additional Rights (as the case may be) as of the date of issuance thereof calculated determined using the Black Scholes Option Pricing Model obtained from or another method mutually agreed to by the “OV” function on Bloomberg utilizing (i) an underlying price per share equal to the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the public announcement of the execution of definitive documents with respect to the issuance of such Additional Rights (as the case may be), (ii) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of such Additional Rights (as the case may be) as of the date of issuance of such Additional Rights (as the case may be), (iii) a zero cost of borrow and (iv) an expected volatility equal to the greater of 100% Company and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the date of issuance of such Additional Rights (as the case may beHolder). The Board of Directors of the Company shall respond promptly, in writing, to an inquiry by the Holder registered holder as to the fair market value of the Additional Rights. In the event that the Board of Directors of the Company and the Holder registered holder are unable to agree upon the fair market value of the Additional Rights, the Company and the Holder registered holder shall jointly select an appraiser who is experienced in such matters. The decision of such appraiser shall be final and conclusive, and the cost of such appraiser shall be borne evenly by the CompanyCompany and the registered holder.

Consideration for Stock. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for cash, the consideration received therefor shall be deemed to be the gross net amount received by the Company therefor, after deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the fair value of such consideration as determined in good faith by the Board of Directors of the Company, after deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued for such consideration as determined in good faith by the Board of Directors of the Company. If Common Stock, Options or Convertible Securities shall be issued or sold by the Company and, in connection therewith, other Options or Convertible Securities (the “Additional Rights”"ADDITIONAL RIGHTS") are issued, together comprising one integral transaction in which no specific then the consideration is allocated to such Additional Rights, (x) such Additional Rights will be deemed to have been issued for consideration equal to the Black Scholes Consideration Value thereof and (y) the other securities issued or sold received or deemed to have been issued or sold in such integrated transaction shall be deemed to have been issued for consideration equal to the difference of (I) the aggregate consideration received or receivable by the Company minus (II) shall be reduced by the Black Scholes Consideration Value of each such Additional Rights. For the purpose of this subsection 3(e)(ii)(5) “Black Scholes Consideration Value” means the fair market value of the applicable Additional Rights (as the case may be) as of the date of issuance thereof calculated determined using the Black Black-Scholes Option Pricing Model obtained from option pricing model or another method mutually agreed to by the “OV” function on Bloomberg utilizing (i) an underlying price per share equal to the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the public announcement of the execution of definitive documents with respect to the issuance of such Additional Rights (as the case may be), (ii) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of such Additional Rights (as the case may be) as of the date of issuance of such Additional Rights (as the case may be), (iii) a zero cost of borrow and (iv) an expected volatility equal to the greater of 100% Company and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the date of issuance of such Additional Rights (as the case may beInvestor). The Board of Directors of the Company shall respond promptly, in writing, to an inquiry by the Holder Investors as to the fair market value of the Additional Rights. In the event that the Board of Directors of the Company and the Holder Investors are unable to agree upon the fair market value of the Additional Rights, the Company and the Holder Investors shall jointly select an appraiser appraiser, who is experienced in such matters. The decision of such appraiser shall be final and conclusive, and the cost of such appraiser shall be borne by the CompanyCompany provided that in the event that the valuation determined by Board of Directors is within ten percent (10%) of the valuation determined by the appraiser, such costs shall be borne evenly by the Company and the Investor.

Consideration for Stock. In case any shares of Common StockShares, Options or Convertible Securities shall be issued or sold for cash, the consideration received therefor shall be deemed to be the gross net amount received by the Company WorldHeart therefor, after deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by WorldHeart in connection therewith. In case any shares of Common StockShares, Options or Convertible Securities shall be issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Company WorldHeart shall be deemed to be the fair value of such consideration as determined in good faith by the Board directors of Directors WorldHeart, after deduction of the Companyany expenses incurred or any underwriting commissions or concessions paid or allowed by WorldHeart in connection therewith. If Common Stock, In case any Options or Convertible Securities shall be issued or sold by the Company and, in connection therewith, with the issue and sale of other Options or Convertible Securities (the “Additional Rights”) are issuedsecurities of WorldHeart, together comprising one integral transaction in which no specific consideration is allocated to such Additional RightsOptions by the parties thereto, (x) such Additional Rights will be deemed to have been issued for consideration equal to the Black Scholes Consideration Value thereof and (y) the other securities issued or sold or deemed to have been issued or sold in such integrated transaction Options shall be deemed to have been issued for such consideration equal to as determined in good faith by the difference directors of WorldHeart. If Common Shares, Options or Convertible Securities shall be issued or sold by WorldHeart and, in connection therewith, other Options or Convertible Securities (Ithe "Additional Rights") are issued, then the aggregate consideration received or receivable deemed to be received by WorldHeart shall be reduced by the Company minus (II) the Black Scholes Consideration Value of each such Additional Rights. For the purpose of this subsection 3(e)(ii)(5) “Black Scholes Consideration Value” means the fair market value of the applicable Additional Rights (as the case may be) as of the date of issuance thereof calculated determined using the Black Black-Scholes Option Pricing Model obtained from the “OV” function on Bloomberg utilizing (i) an underlying price per share equal option pricing model or another method mutually agreed to the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the public announcement of the execution of definitive documents with respect to the issuance of such Additional Rights (as the case may be), (ii) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of such Additional Rights (as the case may be) as of the date of issuance of such Additional Rights (as the case may be), (iii) a zero cost of borrow and (iv) an expected volatility equal to the greater of 100% by WorldHeart and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the date of issuance of such Additional Rights (as the case may beWarrantholder). The Board directors of Directors of the Company WorldHeart shall respond promptly, in writing, to an inquiry by the Holder Warrantholder as to the fair market value of the Additional Rights. In the event that the Board directors of Directors of the Company WorldHeart and the Holder Warrantholder are unable to agree upon the fair market value of the Additional Rights, the Company WorldHeart and the Holder Warrantholder shall jointly select an appraiser appraiser, who is experienced in such matters. The decision of such appraiser shall be final and conclusive, and the cost of such appraiser shall be borne evenly by WorldHeart and the CompanyWarrantholder.

Consideration for Stock. In case If any shares of Common Stock, Options Option or Convertible Securities shall be Security is issued in connection with the issuance or sold for cash, the consideration received therefor shall be sale or deemed to be the gross amount received by the Company therefor. In case issuance or sale of any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the fair value of such consideration as determined in good faith by the Board of Directors securities of the Company. If Common Stock, Options or Convertible Securities shall be issued or sold by the Company and, in connection therewith, other Options or Convertible Securities (the “Additional Rights”) are issued, together comprising one integral transaction in which no specific consideration is allocated to such Additional Rightsintegrated transaction, (x) such Additional Rights Option or Convertible Security (as applicable) will be deemed to have been issued for consideration equal to the Black Scholes Consideration Option Value (as defined below) thereof and (y) the other securities issued or sold or deemed to have been issued or sold in such integrated transaction shall be deemed to have been issued for consideration equal to the difference of (I) the aggregate consideration received or receivable by the Company minus (II) the Black Scholes Consideration Option Value of each such Additional RightsOption or Convertible Security (as applicable). If any shares of Common Stock, Options or Convertible Securities are issued or sold or deemed to have been issued or sold for cash, the consideration received therefor will be deemed to be the net amount of consideration received by the Company therefor. If any shares of Common Stock, Options or Convertible Securities are issued or sold for a consideration other than cash, for purposes of calculating the consideration paid for the Options or Convertible Securities (but not the Option Value thereof), the amount of such consideration received by the Company will be the fair value of such consideration, except where such consideration consists of publicly traded securities, in which case the amount of consideration received by the Company for such securities will be the arithmetic average of the volume weighted average prices of such security for each of the five (5) Trading Days immediately preceding the date of receipt. If any shares of Common Stock, Options or Convertible Securities are issued to the owners of the non-surviving entity in connection with any merger in which the Company is the surviving entity, the amount of consideration therefor will be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable to such shares of Common Stock, Options or Convertible Securities, as the case may be. The fair value of any consideration other than cash or publicly traded securities (but not the Option Value thereof) will be determined in good faith by the Board of Directors of the Company. For the purpose of this subsection 3(e)(ii)(5) purposes hereof, “Black Scholes Consideration Option Value” means the value of the applicable Additional Rights Option or Convertible Security (as the case may be) as of the date of issuance thereof calculated using the Black Scholes Option Pricing Model obtained from the “OV” function on Bloomberg utilizing (i) an underlying price per share equal to the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the public announcement of the execution of definitive documents with respect to the issuance of such Additional Rights Option or Convertible Security (as the case may be), (ii) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of such Additional Rights Option or Convertible Security (as the case may be) as of the date of issuance of such Additional Rights Option or Convertible Security (as the case may be), ) and (iii) a zero cost of borrow and (iv) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the date of issuance of such Additional Rights (as the case may be). The Board of Directors of the Company shall respond promptly, in writing, to an inquiry by the Holder as to the fair market value of the Additional Rights. In the event that the Board of Directors of the Company and the Holder are unable to agree upon the fair market value of the Additional Rights, the Company and the Holder shall jointly select an appraiser who is experienced in such matters. The decision of such appraiser shall be final and conclusive, and the cost of such appraiser shall be borne by the Company40%.

Consideration for Stock. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for cash, the consideration received therefor shall be deemed to be the gross amount received by the Company therefor. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the fair value of such consideration as determined in good faith by the Board of Directors of the Company. In case any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued for such consideration as determined in good faith by the Board of Directors of the Company. If Common Stock, Options or Convertible Securities shall be issued or sold by the Company and, in connection therewith, other Options or Convertible Securities (the “"Additional Rights”") are issued, together comprising one integral transaction in which no specific then the consideration is allocated to such Additional Rights, (x) such Additional Rights will be deemed to have been issued for consideration equal to the Black Scholes Consideration Value thereof and (y) the other securities issued or sold received or deemed to have been issued or sold in such integrated transaction shall be deemed to have been issued for consideration equal to the difference of (I) the aggregate consideration received or receivable by the Company minus (II) shall be reduced by the Black Scholes Consideration Value of each such Additional Rights. For the purpose of this subsection 3(e)(ii)(5) “Black Scholes Consideration Value” means the fair market value of the applicable Additional Rights (as the case may be) as of the date of issuance thereof calculated determined using the Black Black-Scholes Option Pricing Model obtained from option pricing model or another method mutually agreed to by the “OV” function on Bloomberg utilizing (i) an underlying price per share equal to the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the public announcement of the execution of definitive documents with respect to the issuance of such Additional Rights (as the case may be), (ii) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of such Additional Rights (as the case may be) as of the date of issuance of such Additional Rights (as the case may be), (iii) a zero cost of borrow and (iv) an expected volatility equal to the greater of 100% Company and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the date of issuance of such Additional Rights (as the case may beHolder). The Board of Directors of the Company shall respond promptly, in writing, to an inquiry by the Holder Holders as to the fair market value of the Additional Rights. In the event that the Board of Directors of the Company and the Holder Required Holders are unable to agree upon the fair market value of the Additional Rights, the Company and the Holder Required Holders shall jointly select an appraiser appraiser, who is experienced in such matters. The decision of such appraiser shall be final and conclusive, and the cost of such appraiser shall be borne evenly by the CompanyCompany and the Holders. The term "Required Holders" shall mean holders of a majority in interest of the Warrant Shares to be issued under this Warrant and all other warrants issued under the Purchase Agreement.

Consideration for Stock. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for cash, the consideration received therefor shall be deemed to be the gross net amount received by the Company therefor, after deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the fair value of such consideration as determined in good faith by the Board of Directors of the Company, after deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued for such consideration as determined in good faith by the Board of Directors of the Company. If Common Stock, Options or Convertible Securities shall be issued or sold by the Company and, in connection therewith, other Options or Convertible Securities (the “Additional Rights”"ADDITIONAL RIGHTS") are issued, together comprising one integral transaction in which no specific then the consideration is allocated to such Additional Rights, (x) such Additional Rights will be deemed to have been issued for consideration equal to the Black Scholes Consideration Value thereof and (y) the other securities issued or sold received or deemed to have been issued or sold in such integrated transaction shall be deemed to have been issued for consideration equal to the difference of (I) the aggregate consideration received or receivable by the Company minus (II) shall be reduced by the Black Scholes Consideration Value of each such Additional Rights. For the purpose of this subsection 3(e)(ii)(5) “Black Scholes Consideration Value” means the fair market value of the applicable Additional Rights (as the case may be) as of the date of issuance thereof calculated determined using the Black Black-Scholes Option Pricing Model obtained from option pricing model or another method mutually agreed to by the “OV” function on Bloomberg utilizing (i) an underlying price per share equal to the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the public announcement of the execution of definitive documents with respect to the issuance of such Additional Rights (as the case may be), (ii) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of such Additional Rights (as the case may be) as of the date of issuance of such Additional Rights (as the case may be), (iii) a zero cost of borrow and (iv) an expected volatility equal to the greater of 100% Company and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the date of issuance of such Additional Rights (as the case may beHolder). The Board of Directors of the Company shall respond promptly, in writing, to an inquiry by the Holder Holders as to the fair market value of the Additional Rights. In the event that the Board of Directors of the Company and the Holder Holders are unable to agree upon the fair market value of the Additional Rights, the Company and the Holder Holders shall jointly select an appraiser appraiser, who is experienced in such matters. The decision of such appraiser shall be final and conclusive, and the cost of such appraiser shall be borne evenly by the CompanyCompany and the Holder.