Common use of Net Issue Election Clause in Contracts

Net Issue Election. The Holder may elect to receive, without the payment by the Holder of any additional consideration, shares of Common Stock of the Company equal to the value of this Warrant or any remaining portion hereof. The Holder may exercise its election under this Section by the surrender of this Warrant or such portion to the Company at the principal office of the Company, with the subscription form attached hereto marked with a net issue election. The Company shall issue to the Holder such number of fully paid and nonassessable shares of Common Stock as is computed using the following formula: where: X = the number of shares of Common Stock to be issued to the Holder pursuant to this Section 6. X = Y (A – B) Y = the number of shares of Common Stock covered by this Warrant in respect of which the net issue election is made pursuant to this Section 6. A A = The fair market value of the Common Stock (as determined below) on the date the Company receives notice of the exercise with the net issue election duly executed. B = the Purchase Price in effect under this Warrant at the time the net issue election is made pursuant to this Section 6. As used herein, the fair market value of Common Stock as of a specified date shall mean the average of the closing sales price of the Company’s Common Stock as quoted by the Nasdaq Stock Market (“Nasdaq”) or listed on any exchange, whichever is applicable, as published in the Western Edition of The Wall Street Journal for the ten trading days immediately prior to the date of the Holder’s election hereunder. If the Company’s Common Stock is not quoted by Nasdaq or listed on an exchange, the fair market value of the Common Stock shall be the fair market value of the Common Stock of the Company as determined by the Company’s Board of Directors in good faith. If the Company has become subject to an Acquisition (as defined in Section 9 below) agreement prior to the date of the exercise under this Section 6, the current fair market value of the Common Stock shall be deemed to be the value to received by the holders of the Company’s Common Stock (as determined in good faith by the Company’s Board of Directors) for each share of Common Stock pursuant to such Acquisition.

Net Issue Election. The Holder may elect to receive, without the payment by the Holder of any additional consideration, shares of Common Stock of the Company receive Exercise Shares equal to the value of this Warrant or any remaining portion hereof. The Holder may exercise its election under this Section by the surrender of this Warrant or such portion to the Company at the principal office of the Company, with in which event the subscription form attached hereto marked with a net issue election. The Company shall issue to the Holder such that number of fully paid and nonassessable shares Exercise Shares determined by use of Common Stock as is computed using the following formula: where: X = Y(A-B) A where X = the number of shares of Common Stock Exercise Shares to be issued to the Holder pursuant to this Section 6. X = Y (A – B) issued; Y = the number of shares Exercise Shares purchasable under the Warrant or, if only a portion of Common Stock covered by the Warrant is being exercised, the portion of the Warrant being exercised; A = the Fair Market Value of one Exercise Share for which this Warrant in respect of which the net issue election is made pursuant to this Section 6. A A = The fair market value of the Common Stock being exercised (as determined belowapplicable); and B = the Exercise Price. If on the date of exercise, the Exercise Shares are listed on an established national or regional stock exchange, are admitted to quotation on the National Association of Securities Dealers Automated Quotation System, or are publicly traded on an established securities market, then notwithstanding anything else contained in the Warrant, the Fair Market Value of one Exercise Share shall be the closing price of one Exercise Share on such exchange or in such market (the highest such closing price if there is more than one such exchange or market) on the trading day immediately preceding the date the Company receives notice of the exercise with the net issue election duly executed. B = the Purchase Price in effect under this Warrant at the time the net issue election on which such determination is being made pursuant to this Section 6. As used herein(or, if there is no such reported closing price, the fair market value Fair Market Value shall be the mean between the highest bid and lowest asked prices or between the high and low sale prices on such trading day), or, if no sale of Common Stock as any Exercise Shares of a specified date is reported for such trading day, on the next preceding day on which any sale shall mean have been reported. If the average of the closing sales price of the Company’s Common Stock as quoted by the Nasdaq Stock Market (“Nasdaq”) or Exercise Shares are not listed on any such an exchange, whichever is applicable, as published in the Western Edition of The Wall Street Journal for the ten trading days immediately prior to quoted on such system or traded on such a market on the date of the Holder’s election hereunder. If the Company’s Common Stock is not quoted by Nasdaq or listed on an exchangeexercise, the fair market value Fair Market Value of the Common Stock Exercise Shares shall be the fair market value of the Common Stock of the Company as determined by the Company’s Board of Directors in good faith. If the Company has become subject to an Acquisition (as defined in Section 9 below) agreement prior to the date of the exercise under this Section 6, the current fair market value of the Common Stock shall be deemed to be the value to received by the holders of the Company’s Common Stock (as determined in good faith by the Company’s Board of Directors) for each share of Common Stock pursuant to such Acquisition.

Net Issue Election. The Holder may elect to receive, without the payment by the Holder of any additional consideration, shares of Common Stock of the Company equal to the value of this Warrant or any remaining portion hereof. The Holder may exercise its election under this Section hereof by the surrender of this Warrant or such portion to the Company Company, with the net issue election notice annexed hereto duly executed, at the principal office of the Company; provided, that the Holder may not make such an election unless (i) the Company has registered the Common Stock pursuant to the Act or in connection with such registration or (ii) upon the subscription form attached hereto marked with a net issue electionexpiration of this Warrant. The Thereupon, the Company shall issue to the Holder such number of fully paid and nonassessable shares of Common Stock as is computed using the following formula: where: X = Y (A-B) ------- A where X = the number of shares of Common Stock to be issued to the Holder pursuant to this Section 610. X = Y (A – B) Y = the number of shares of Common Stock covered by this Warrant in respect of which the net issue election is made pursuant to this Section 610. A A = The the fair market value of one share of Common Stock. If the Common Stock is registered pursuant to the Act, the fair market value shall mean the average high and low prices of the Common Stock on the day prior to the exercise of this Warrant, if the Common Stock is being traded on a national exchange; or the last reported sale price on the day prior to exercise of this Warrant, if the Common Stock is traded on the Nasdaq National Market, and the Common Stock is not traded on a national exchange; or the closing bid price (or average of bid prices) last quoted on the day prior to the exercise of this Warrant by an established quotation service for over-the-counter securities, if the Common Stock is not reported on the Nasdaq National Market or a national exchange. If the election occurs in connection with the registration of Common Stock under the Act, then the fair market value shall be the price offered to the public. Otherwise, the fair market value shall be as determined below) on in good faith by the date the Company receives notice Board of Directors of the exercise with Company, at the time the net issue election duly executedis made pursuant to this Section 10. B = the Purchase Exercise Price in effect under this Warrant at the time the net issue election is made pursuant to this Section 610. As used herein, The Board of Directors shall promptly respond in writing to an inquiry by the Holder as to the fair market value of Common Stock as of a specified date shall mean the average of the closing sales price of the Company’s Common Stock as quoted by the Nasdaq Stock Market (“Nasdaq”) or listed on any exchange, whichever is applicable, as published in the Western Edition of The Wall Street Journal for the ten trading days immediately prior to the date of the Holder’s election hereunder. If the Company’s Common Stock is not quoted by Nasdaq or listed on an exchange, the fair market value of the Common Stock shall be the fair market value of the Common Stock of the Company as determined by the Company’s Board of Directors in good faith. If the Company has become subject to an Acquisition (as defined in Section 9 below) agreement prior to the date of the exercise under this Section 6, the current fair market value of the Common Stock shall be deemed to be the value to received by the holders of the Company’s Common Stock (as determined in good faith by the Company’s Board of Directors) for each one share of Common Stock pursuant to such AcquisitionStock.

Net Issue Election. The Holder may elect to receive, without the payment by the Holder of any additional consideration, shares of Common Stock of the Company equal to the value of this Warrant or any remaining portion hereof. The Holder may exercise its election under this Section hereof by the surrender of this Warrant or such portion to the Company Company, with the net issue election notice annexed hereto duly executed, at the principal office of the Company. Thereupon, with the subscription form attached hereto marked with a net issue election. The Company shall issue to the Holder such number of fully paid and nonassessable shares of Common Stock as is computed using the following formula: where: X = Y (A-B) ------- A where X = the number of shares of Common Stock to be issued to the Holder pursuant to this Section 64. X = Y (A – B) Y = the number of shares of Common Stock covered by this Warrant in respect of which the net issue election is made pursuant to this Section 64. A A = The the fair market value of the one share of Common Stock (Stock, as determined below) on , as at the date the Company receives notice of the exercise with time the net issue election duly executedis made pursuant to this Section 4. B = the Purchase Price in effect under this Warrant at the time the net issue election is made pursuant to this Section 64. As used hereinFor purposes of this Warrant, if, at the time of a net issue election, the Company's Common Stock is publicly traded, "fair market value of Common Stock value" shall be determined as of a specified date shall mean the average of last business day for which the closing sales price of the Company’s Common Stock as quoted by the Nasdaq Stock Market (“Nasdaq”) prices or listed quotes discussed in this sentence are available on any exchange, whichever is applicable, as published in the Western Edition of The Wall Street Journal for the ten trading days immediately or prior to the date of such election and shall mean (i) the Holder’s election hereunderaverage (on that date) of the high and low prices of the Common Stock on the principal national securities exchange on which the Common Stock is traded, if the Common Stock is then traded on a national securities exchange; or (ii) the last reported sale price (on that date) of the Common Stock on the Nasdaq National Market, if the Common Stock is not then traded on a national securities exchange; or (iii) the closing bid price (or average of bid prices) last quoted (on that date) by an established quotation service for over-the-counter securities, if the Common Stock is not reported on the Nasdaq National Market. If the Company’s 's Common Stock is not quoted by Nasdaq or listed on an exchangethen publicly traded, the "fair market value of the Common Stock value" shall be the fair market value of the Common Stock of the Company as determined by the Company’s Board of Directors in good faith. If the Company has become subject to an Acquisition (as defined in Section 9 below) agreement prior to the date of the exercise under this Section 6, the current fair market value of the Common Stock shall be deemed to be the value to received by the holders of the Company’s Common Stock (as determined in good faith by the Company’s Board of Directors) for each share Directors of Common Stock pursuant to such Acquisitionthe Company.

Net Issue Election. The Holder may elect to receive, without the payment by the Holder of any additional consideration, shares of Common Stock of the Company equal to the value of this Warrant or any remaining portion hereof. The Holder may exercise its election under this Section hereof by the surrender of this Warrant or such portion to the Company Company, with the net issue election notice annexed hereto duly executed, at the principal office of the Company; PROVIDED, that the Holder may not make such an election unless (i) the Company has registered its securities pursuant to the Securities Act of 1933, as amended, (the "Act") or in connection with such registration or (ii) upon the subscription form attached hereto marked with a net issue electionexpiration of this Warrant. The Thereupon, the Company shall issue to the Holder such number of fully paid and nonassessable shares of Common Stock as is computed using the following formula: where: X=Y(A-B) ------ A where X = the number of shares of Common Stock to be issued to the Holder pursuant to this Section 64. X = Y (A – B) Y = the number of shares of Common Stock covered by this Warrant in respect of which the net issue election is made pursuant to this Section 64. A A = The the fair market value of one share of Common Stock. If the Company's securities are registered pursuant to the Act, the fair market value shall mean the average high and low prices of the Common Stock on the day prior to the exercise of this Warrant, if the Common Stock is being traded on a national exchange; or the last reported sale price on the day prior to exercise of this Warrant, if the Common Stock is traded on the Nasdaq National Market, and if the Common Stock is not traded on a national exchange; or the closing bid price (or average of bid prices) last quoted on the day prior to the exercise of this Warrant by an established quotation service for over-the-counter securities, if the Common Stock is not reported on the Nasdaq National Market or a national exchange. If the election occurs in connection with the registration of securities, then the fair market value shall be the price offered to the public. Otherwise, the fair market value shall be as determined below) on in good faith by the date Board, at the Company receives notice of the exercise with time the net issue election duly executedis made pursuant to this Section 4. B = the Purchase Price in effect under this Warrant at the time the net issue election is made pursuant to this Section 64. As used herein, The Board shall promptly respond in writing to an inquiry by the Holder as to the fair market value of Common Stock as of a specified date shall mean the average of the closing sales price of the Company’s Common Stock as quoted by the Nasdaq Stock Market (“Nasdaq”) or listed on any exchange, whichever is applicable, as published in the Western Edition of The Wall Street Journal for the ten trading days immediately prior to the date of the Holder’s election hereunder. If the Company’s Common Stock is not quoted by Nasdaq or listed on an exchange, the fair market value of the Common Stock shall be the fair market value of the Common Stock of the Company as determined by the Company’s Board of Directors in good faith. If the Company has become subject to an Acquisition (as defined in Section 9 below) agreement prior to the date of the exercise under this Section 6, the current fair market value of the Common Stock shall be deemed to be the value to received by the holders of the Company’s Common Stock (as determined in good faith by the Company’s Board of Directors) for each one share of Common Stock pursuant to such AcquisitionStock.

Net Issue Election. The Holder may elect to receive, without the payment by the Holder of any additional consideration, shares of Common Stock of the Company equal to the value of this Warrant or any remaining portion hereof. The Holder may exercise its election under this Section by the surrender of this Warrant or such portion to the Company at the principal office of the Company, with the subscription form attached hereto marked with a net issue election. The Company shall issue to the Holder such number of fully paid and nonassessable shares of Common Stock as is computed using the following formula: where: X = the number of shares of Common Stock to be issued to the Holder pursuant to this Section 6. X = Y (A – B) A Y = the number of shares of Common Stock covered by this Warrant in respect of which the net issue election is made pursuant to this Section 6. A A = The fair market value of the Common Stock (as determined below) on the date the Company receives notice of the exercise with the net issue election duly executed. B = the Purchase Price in effect under this Warrant at the time the net issue election is made pursuant to this Section 6. As used herein, the fair market value of Common Stock as of a specified date shall mean the average of the closing sales price of the Company’s Common Stock as quoted by the Nasdaq Stock Market (“Nasdaq”) or listed on any exchange, whichever is applicable, as published in the Western Edition of The Wall Street Journal for the ten trading days immediately prior to the date of the Holder’s election hereunder. If the Company’s Common Stock is not quoted by Nasdaq or listed on an exchange, the fair market value of the Common Stock shall be the fair market value of the Common Stock of the Company as determined by the Company’s Board of Directors in good faith. If the Company has become subject to an Acquisition (as defined in Section 9 below) agreement prior to the date of the exercise under this Section 6, the current fair market value of the Common Stock shall be deemed to be the value to received by the holders of the Company’s Common Stock (as determined in good faith by the Company’s Board of Directors) for each share of Common Stock pursuant to such Acquisition.

Net Issue Election. The Holder may elect to receive, without the payment by the Holder of any additional consideration, shares of Common Stock of the Company equal to the value of this Warrant or any remaining portion hereof. The Holder may exercise its election under this Section hereof by the surrender of this Warrant or such portion to the Company Company, with the net issue election notice annexed hereto duly executed, at the principal office of the Company; provided, that the Holder may not make such an election unless (i) the Company has registered its securities pursuant to the Securities Act of 1933, as amended, (the "Act") or in connection with such registration or (ii) upon the subscription form attached hereto marked with a net issue electionexpiration of this Warrant. The Thereupon, the Company shall issue to the Holder such number of fully paid and nonassessable shares of Common Stock as is computed using the following formula: where: X=Y(A-B) ------ A where X = the number of shares of Common Stock to be issued to the Holder pursuant to this Section 64. X = Y (A – B) Y = the number of shares of Common Stock covered by this Warrant in respect of which the net issue election is made pursuant to this Section 64. A A = The the fair market value of one share of Common Stock. If the Company's securities are registered pursuant to the Act, the fair market value shall mean the average high and low prices of the Common Stock on the day prior to the exercise of this Warrant, if the Common Stock is being traded on a national exchange; or the last reported sale price on the day prior to exercise of this Warrant, if the Common Stock is traded on the Nasdaq National Market, and if the Common Stock is not traded on a national exchange; or the closing bid price (or average of bid prices) last quoted on the day prior to the exercise of this Warrant by an established quotation service for over-the-counter securities, if the Common Stock is not reported on the Nasdaq National Market or a national exchange. If the election occurs in connection with the registration of securities, then the fair market value shall be the price offered to the public. Otherwise, the fair market value shall be as determined below) on in good faith by the date Board, at the Company receives notice of the exercise with time the net issue election duly executedis made pursuant to this Section 4. B = the Purchase Price in effect under this Warrant at the time the net issue election is made pursuant to this Section 64. As used herein, The Board shall promptly respond in writing to an inquiry by the Holder as to the fair market value of Common Stock as of a specified date shall mean the average of the closing sales price of the Company’s Common Stock as quoted by the Nasdaq Stock Market (“Nasdaq”) or listed on any exchange, whichever is applicable, as published in the Western Edition of The Wall Street Journal for the ten trading days immediately prior to the date of the Holder’s election hereunder. If the Company’s Common Stock is not quoted by Nasdaq or listed on an exchange, the fair market value of the Common Stock shall be the fair market value of the Common Stock of the Company as determined by the Company’s Board of Directors in good faith. If the Company has become subject to an Acquisition (as defined in Section 9 below) agreement prior to the date of the exercise under this Section 6, the current fair market value of the Common Stock shall be deemed to be the value to received by the holders of the Company’s Common Stock (as determined in good faith by the Company’s Board of Directors) for each one share of Common Stock pursuant to such AcquisitionStock.

Net Issue Election. The Holder holder hereof may elect to receive, without the payment by the Holder such holder of any additional considerationconsideration (other than the surrender referred to in this Section 2(b)), shares of Common Stock of the Company equal to the value of this Warrant or any remaining portion hereof. The Holder may exercise its election under this Section hereof (as determined below) by the surrender of this Warrant or such portion to the Company Company, with the Notice of Exercise duly executed by such xxxxxx, at the principal office of any duly appointed transfer agent for the Common Stock or at the office of the Company. Thereupon, with the subscription form attached hereto marked with a net issue election. The Company shall issue to the Holder such holder such number of fully paid and nonassessable shares of Common Stock as is computed using the following formula: where: X = Y (A-B) ------- A where X = the number of shares of Common Stock to be issued to the Holder such holder pursuant to this Section 62(b). X = Y (A – B) Y = the number of shares of Common Stock covered by this Warrant in respect of which the net issue election is made pursuant to this Section 62(b). A A = The fair market value of the Common Stock Fair Market Value (as determined defined below) on the date the Company receives notice of the exercise with the net issue election duly executedone share of Common Stock. B = the Purchase Warrant Price then in effect under this Warrant at the time the net issue election is made pursuant to this Section 62(b). As used herein, the fair market value "FAIR MARKET VALUE" per share of Common Stock as of any date shall mean the numerical average of the fair market value per share of Common Stock over a specified date period of 21 business days consisting of the business day on which the Notice of Exercise is received by the Company and the 20 consecutive business days prior to such date. The fair market value per share of Common Stock for any day shall mean the average of the closing sales price prices of the Company’s 's Common Stock sold on all securities exchanges on which the Common Stock may at the time be listed or as quoted by on the Nasdaq Stock Market (“Nasdaq”) or listed National Market, or, if there have been no sales on any exchangesuch exchange or any such quotation on any day, whichever the average of the highest bid and lowest asked prices on all such exchanges or such system at the end of such day, or, if any day the Common Stock is applicablenot so listed, as published the average of the representative bid and asked prices quoted in the Western Edition Nasdaq system as of The Wall Street Journal for the ten trading days immediately prior to the date of the Holder’s election hereunder. If the Company’s 4:00 p.m., Boston time, or, if on any day that Common Stock is not quoted by in the Nasdaq or listed on an exchangesystem, the fair average of the highest bid and lowest asked price on such day in the domestic over-the-counter market value of as reported by the National Quotation Bureau, Incorporated, or any similar successor organization. If at any time the Common Stock shall be is not listed on any securities exchange or quoted in the fair market value of Nasdaq system or the Common Stock of the Company as determined by the Company’s Board of Directors in good faith. If the Company has become subject to an Acquisition (as defined in Section 9 below) agreement prior to the date of the exercise under this Section 6over-the-counter market, the current fair market value of the Common Stock shall be deemed to be the value to received highest price per share which the Company could obtain from a willing buyer (not a current employee or director) for shares of Common Stock sold by the holders of the Company’s Common Stock (, from authorized but unissued shares, as determined in good faith by the Company’s Board of Directors) for each share Directors of Common Stock pursuant to such Acquisitionthe Company.

Net Issue Election. The Holder may elect to receive, without the payment by the Holder of any additional consideration, shares of Common Stock of the Company receive Exercise Shares equal to the value of this Warrant or any remaining portion hereof. The Holder may exercise its election under this Section by the surrender of this Warrant or such portion to the Company at the principal office of the Company, with in which event the subscription form attached hereto marked with a net issue election. The Company shall issue to the Holder such that number of fully paid and nonassessable shares Exercise Shares determined by use of Common Stock as is computed using the following formula: X = Y(A-B) where: X = the number of shares of Common Stock Exercise Shares to be issued to the Holder pursuant to this Section 6. X = Y (A – B) issued; Y = the number of shares Exercise Shares purchasable under the Warrant or, if only a portion of Common Stock covered by the Warrant is being exercised, the portion of the Warrant being exercised; A = the Fair Market Value of one Exercise Share for which this Warrant in respect of which the net issue election is made pursuant to this Section 6. A A = The fair market value of the Common Stock being exercised (as determined belowapplicable); and B = the Exercise Price. If on the date of exercise, the Exercise Shares are listed on an established national or regional stock exchange, are admitted to quotation on the National Association of Securities Dealers Automated Quotation System, or are publicly traded on an established securities market, then notwithstanding anything else contained in the Warrant, the Fair Market Value of one Exercise Share shall be the closing price of one Exercise Share on such exchange or in such market (the highest such closing price if there is more than one such exchange or market) on the trading day immediately preceding the date the Company receives notice of the exercise with the net issue election duly executed. B = the Purchase Price in effect under this Warrant at the time the net issue election on which such determination is being made pursuant to this Section 6. As used herein(or, if there is no such reported closing price, the fair market value Fair Market Value shall be the mean between the highest bid and lowest asked prices or between the high and low sale prices on such trading day), or, if no sale of Common Stock as any Exercise Shares of a specified date is reported for such trading day, on the next preceding day on which any sale shall mean have been reported. If the average of the closing sales price of the Company’s Common Stock as quoted by the Nasdaq Stock Market (“Nasdaq”) or Exercise Shares are not listed on any such an exchange, whichever is applicable, as published in the Western Edition of The Wall Street Journal for the ten trading days immediately prior to quoted on such system or traded on such a market on the date of the Holder’s election hereunder. If the Company’s Common Stock is not quoted by Nasdaq or listed on an exchangeexercise, the fair market value Fair Market Value of the Common Stock Exercise Shares shall be the fair market value of the Common Stock of the Company as determined by the Company’s Board of Directors in good faith. If the Company has become subject to an Acquisition (as defined in Section 9 below) agreement prior to the date of the exercise under this Section 6, the current fair market value of the Common Stock shall be deemed to be the value to received by the holders of the Company’s Common Stock (as determined in good faith by the Company’s Board of Directors) for each share of Common Stock pursuant to such Acquisition.

Net Issue Election. The Holder Notwithstanding any other provision contained herein to the contrary, commencing 120 days after (i) with respect to all Warrant Shares other than Additional Warrant Shares, the Closing Date or (ii) with respect to Additional Warrant Shares, an Investor demand, so long as the Company is required under the Registration Rights Agreement to have effected the registration of the Warrant Shares or the Additional Warrant Shares, as the case may be, for sale to the public pursuant to a Registration Statement (as such term is defined in the Registration Rights Agreement), if the Warrant Shares or the Additional Warrant Shares, as the case may be, may not be freely sold to the public for any reason (including, but not limited to, the failure of the Company to have effected the registration of the Warrant Shares or the Additional Warrant Shares, as the case may be, or to have a current prospectus available for delivery or otherwise, but excluding the inability of the Warrantholder to sell the Warrant Shares or Additional Warrant Shares, as the case may be, due to market conditions), the Warrantholder may elect to receive, without the payment by the Holder Warrantholder of any additional considerationthe aggregate Warrant Price in respect of the shares of Common Stock to be acquired, shares of Common Stock of the Company equal to the value of this Warrant or any remaining portion hereof. The Holder may exercise its election under this Section hereof by the surrender of this Warrant (or such portion to of this Warrant being so exercised) together with the Company Net Issue Election Notice annexed hereto as Appendix B duly executed, at the principal office of the Company; provided, with however, that in the subscription form attached hereto marked with a net issue electioncase of the Additional Warrant Shares, such right shall be limited to the value of the Additional Warrant Shares. The Thereupon, the Company shall issue to the Holder Warrantholder such number of fully paid paid, validly issued and nonassessable shares of Common Stock as is computed using the following formula: where: X = Y (A - B) A where X = the number of shares of Common Stock to which the Warrantholder has then requested be issued to the Holder pursuant to this Section 6. X = Y (A – B) Warrantholder; Y = the total number of shares of Common Stock covered by this Warrant in respect of which the net issue election is made pursuant Warrantholder has surrendered at such time for cash-less exercise (including both shares to this Section 6. A be issued to the Warrantholder and shares to be canceled as payment therefor); A = The fair market value the “Fair Market Value” of the one share of Common Stock (as determined below) on the date the Company receives notice of the exercise with the net issue election duly executed. B = the Purchase Price in effect under this Warrant at the time the net issue election is made pursuant to this Section 6. As used herein, the fair market value of Common Stock as of a specified date shall mean the average of the closing sales price of the Company’s Common Stock as quoted by the Nasdaq Stock Market (“Nasdaq”) or listed on any exchange, whichever is applicable, as published in the Western Edition of The Wall Street Journal for the ten trading days immediately prior to the date of the Holder’s election hereunder. If the Company’s Common Stock is not quoted by Nasdaq or listed on an exchange, the fair market value of the Common Stock shall be the fair market value of the Common Stock of the Company as determined by the Company’s Board of Directors in good faith. If the Company has become subject to an Acquisition (as defined in Section 9 below) agreement prior to the date of the exercise under this Section 6, the current fair market value of the Common Stock shall be deemed to be the value to received by the holders of the Company’s Common Stock (as determined in good faith by the Company’s Board of Directors) for each share of Common Stock pursuant to such Acquisition.made; and

Net Issue Election. The Holder Notwithstanding any other provision contained herein to the contrary, commencing 120 days after (i) the First Closing Date (in the case of Warrants issued on the First Closing Date) (as such term is defined in the Purchase Agreement), (ii) the Second Closing Date (in the case of Warrants issued on the Second Closing Date) (as such term is defined in the Purchase Agreement) or (iii) an Investor demand (in the case of Additional Warrant Shares), so long as the Company is required under the Registration Rights Agreement to have effected the registration of the Warrant Shares or the Additional Warrant Shares, as the case may be, for sale to the public pursuant to a Registration Statement (as such term is defined in the Registration Rights Agreement), if the Warrant Shares or the Additional Warrant Shares, as the case may be, may not be freely sold to the public for any reason (including, but not limited to, the failure of the Company to have effected the registration of the Warrant Shares or the Additional Warrant Shares, as the case may be, or to have a current prospectus available for delivery or otherwise, but excluding the inability of the Warrantholder to sell the Warrant Shares or Additional Warrant Shares, as the case may be, due to market conditions), the Warrantholder may elect to receive, without the payment by the Holder Warrantholder of any additional considerationthe aggregate Warrant Price in respect of the shares of Common Stock to be acquired, shares of Common Stock of the Company equal to the value of this Warrant or any remaining portion hereof. The Holder may exercise its election under this Section hereof by the surrender of this Warrant (or such portion to of this Warrant being so exercised) together with the Company Net Issue Election Notice annexed hereto as Appendix B duly executed, at the principal office of the Company; provided, with however, that in the subscription form attached hereto marked with a net issue electioncase of the Additional Warrant Shares, such right shall be limited to the value of the Additional Warrant Shares. The Thereupon, the Company shall issue to the Holder Warrantholder such number of fully paid paid, validly issued and nonassessable shares of Common Stock as is computed using the following formula: where: X = Y (A - B) --------- A where X = the number of shares of Common Stock to which the Warrantholder has then requested be issued to the Holder pursuant to this Section 6. X = Y (A – B) Warrantholder; Y = the total number of shares of Common Stock covered by this Warrant in respect which the Warrantholder has surrendered at such time for cash-less exercise (including both shares to be issued to the Warrantholder and shares to be canceled as payment therefor); A = the "Fair Market Value" of which one share of Common Stock as at the time the net issue election is made pursuant to this Section 6. A A = The fair market value of the Common Stock (as determined below) on the date the Company receives notice of the exercise with the net issue election duly executed. made; and B = the Purchase Warrant Price in effect under this Warrant at the time the net issue election is made pursuant to this Section 6. As used herein, the fair market value of Common Stock as of a specified date shall mean the average of the closing sales price of the Company’s Common Stock as quoted by the Nasdaq Stock Market (“Nasdaq”) or listed on any exchange, whichever is applicable, as published in the Western Edition of The Wall Street Journal for the ten trading days immediately prior to the date of the Holder’s election hereunder. If the Company’s Common Stock is not quoted by Nasdaq or listed on an exchange, the fair market value of the Common Stock shall be the fair market value of the Common Stock of the Company as determined by the Company’s Board of Directors in good faith. If the Company has become subject to an Acquisition (as defined in Section 9 below) agreement prior to the date of the exercise under this Section 6, the current fair market value of the Common Stock shall be deemed to be the value to received by the holders of the Company’s Common Stock (as determined in good faith by the Company’s Board of Directors) for each share of Common Stock pursuant to such Acquisitionmade.

Net Issue Election. The Holder may elect to receive, without the payment by the Holder of any additional consideration, shares of Common Stock of the Company equal to the value of this Warrant or any remaining portion hereof. The Holder may exercise its election under this Section hereof by the surrender of this Warrant or such portion to the Company Company, with the net issue election notice annexed hereto duly executed, at the principal office of the Company; PROVIDED, that the Holder may not make such an election unless (i) the Company has registered its securities pursuant to the Securities Act of 1933, as amended, (the "Act") or in connection with such registration or (ii) upon the subscription form attached hereto marked with a net issue electionexpiration of this Warrant. The Thereupon, the Company shall issue to the Holder such number of fully paid and nonassessable shares of Common Stock as is computed using the following formula: where: X = Y (A-B) ------- A where X = the number of shares of Common Stock to be issued to the Holder pursuant to this Section 64. X = Y (A – B) Y = the number of shares of Common Stock covered by this Warrant in respect of which the net issue election is made pursuant to this Section 64. A A = The the fair market value of one share of Common Stock. If the Company's securities are registered pursuant to the Act, the fair market value shall mean the average high and low prices of the Common Stock on the day prior to the exercise of this Warrant, if the Common Stock is being traded on a national exchange; or the last reported sale price on the day prior to exercise of this Warrant, if the Common Stock is traded on the Nasdaq National Market, and if the Common Stock is not traded on a national exchange; or the closing bid price (or average of bid prices) last quoted on the day prior to the exercise of this Warrant by an established quotation service for over-the-counter securities, if the Common Stock is not reported on the Nasdaq National Market or a national exchange. If the election occurs in connection with the registration of securities, then the fair market value shall be the price offered to the public. Otherwise, the fair market value shall be as determined below) on in good faith by the date Board, at the Company receives notice of the exercise with time the net issue election duly executedis made pursuant to this Section 4. B = the Purchase Price in effect under this Warrant at the time the net issue election is made pursuant to this Section 64. As used herein, The Board shall promptly respond in writing to an inquiry by the Holder as to the fair market value of Common Stock as of a specified date shall mean the average of the closing sales price of the Company’s Common Stock as quoted by the Nasdaq Stock Market (“Nasdaq”) or listed on any exchange, whichever is applicable, as published in the Western Edition of The Wall Street Journal for the ten trading days immediately prior to the date of the Holder’s election hereunder. If the Company’s Common Stock is not quoted by Nasdaq or listed on an exchange, the fair market value of the Common Stock shall be the fair market value of the Common Stock of the Company as determined by the Company’s Board of Directors in good faith. If the Company has become subject to an Acquisition (as defined in Section 9 below) agreement prior to the date of the exercise under this Section 6, the current fair market value of the Common Stock shall be deemed to be the value to received by the holders of the Company’s Common Stock (as determined in good faith by the Company’s Board of Directors) for each one share of Common Stock pursuant to such AcquisitionStock.

Net Issue Election. The Notwithstanding any provisions herein to the contrary, if the Fair Market Value (hereinafter defined) of one share of Common Stock is greater than the Exercise Price (at the date of calculation as set forth below), in lieu of exercising this Warrant for cash, the Holder may elect to receive, without the payment by the Holder of any additional consideration, receive shares of Common Stock of the Company equal to the value (as determined below) of this Warrant (or the portion thereof being exercised) by surrender of this Warrant or any remaining portion hereof. The Holder may exercise its election under this Section by the surrender of this Warrant or such portion to the Company part thereof at the principal office of the Company, together with the subscription form attached properly completed and executed Exercise Agreement together with the Net Issue Election Notice annexed hereto marked with a net issue election. The as Exhibit B duly executed, at the office of the Company in which event the Company shall issue to the Holder such a number of shares of fully paid paid, validly issued and nonassessable shares of Common Stock as is computed using the following formula: where: X No. of Exercise Shares x (Fair Market Value -- Exercise Price) Net Issue Shares = -------------------------------------------------------------- Fair Market Value Where the "Net Issue Shares" is the number of shares of Common Stock to be issued to the Holder pursuant to this Section 6and the "No. X = Y (A – B) Y = of Exercise Shares" is the number of shares of Common Stock covered by this purchasable under the Warrant in respect or, if only a portion of which the net issue election Warrant is made pursuant to this Section 6being exercised, the portion of the Warrant being exercised (at the date of such calculation). A A = The fair market value For purposes of the above calculation, Fair Market Value shall mean as of a particular date (the "Valuation Date") the following: (a) if the Common Stock (as determined below) is then listed on a national stock exchange, the closing sale price of one share of Common Stock on such exchange on the date last trading day prior to the Company receives notice Valuation Date; (b) if the Common Stock is then quoted on The Nasdaq Stock Market, Inc. ("Nasdaq"), the National Association of Securities Dealers, Inc. OTC Bulletin Board (the "Bulletin Board") or such similar quotation system or association, the closing sale price of one share of Common Stock on Nasdaq, the Bulletin Board or such other quotation system or association on the last trading day prior to the Valuation Date or, if no such closing sale price is available, the average of the exercise with high bid and the net issue election duly executed. B = low asked price quoted thereon on the Purchase Price in effect under this Warrant at last trading day prior to the time Valuation Date; or (c) if the net issue election Common Stock is made pursuant to this Section 6. As used hereinnot then listed on a national stock exchange or quoted on Nasdaq, the Bulletin Board or such other quotation system or association, the fair market value of one share of Common Stock as of a specified date shall mean the average of the closing sales price of the Company’s Common Stock as quoted by the Nasdaq Stock Market (“Nasdaq”) or listed on any exchangeValuation Date, whichever is applicable, as published in the Western Edition of The Wall Street Journal for the ten trading days immediately prior to the date of the Holder’s election hereunder. If the Company’s Common Stock is not quoted by Nasdaq or listed on an exchange, the fair market value of the Common Stock shall be the fair market value of the Common Stock of the Company as determined by the Company’s Board of Directors in good faith. If the Company has become subject to an Acquisition (as defined in Section 9 below) agreement prior to the date of the exercise under this Section 6, the current fair market value of the Common Stock shall be deemed to be the value to received by the holders of the Company’s Common Stock (as determined in good faith by the Company’s Board of Directors) for each Directors of the Company. If the Common Stock is not then listed on a national securities exchange, the Bulletin Board or such other quotation system or association, the Board of Directors of the Company shall respond promptly, in writing, to an inquiry by the Holder prior to the exercise hereunder as to the fair market value of a share of Common Stock pursuant to such Acquisitionas determined by the Board of Directors of the Company.