Common use of Adjustment for Certain Sales of Common Stock Below Current Market Value Clause in Contracts

Adjustment for Certain Sales of Common Stock Below Current Market Value. If, after the Issue Date, the Company (i) grants or sells to any Affiliate of the Company (other than a Subsidiary) or (ii) grants or sells, or offers to grant or sell to all holders of any class or series of Common Stock, shares of any class or series of Common Stock or any securities convertible into or exchangeable or exercisable for any class or series of Common Stock (other than (1) pursuant to the exercise of the Warrants, (2) pursuant to any security convertible into, or exchangeable or exercisable for, shares of Common Stock outstanding as of the Issue Date, (3) upon the conversion, exchange or exercise of any convertible, exchangeable or exercisable security as to which upon the issuance thereof an adjustment pursuant to this Section 12 has been made or (4) upon the conversion, exchange or exercise of convertible, exchangeable or exercisable securities of the Company outstanding on the Issue Date (to the extent in accordance with the terms of such securities as in effect on such date), including any warrants issued to purchasers of the Company's 12 3/4% Senior Subordinated Notes due 2010 at a price per share below the then Current Market Value, the Exercise Rate for each Warrant then outstanding shall be adjusted in accordance with the formula: E/1/ = E x (O+N) ----------------- (O + (N x P/M)) where: E/1/ = the adjusted Exercise Rate for each Warrant then outstanding; E = the then current Exercise Rate for each Warrant then outstanding; O = the aggregate number of shares of Common Stock of all classes outstanding immediately prior to the sale of such Common Stock or issuance of securities convertible, exchangeable or exercisable for Common Stock; N = the number of shares of Common Stock of any class or series so sold or the maximum stated number of shares of Common Stock of any class or series issuable upon the conversion, exchange or exercise of any such convertible, exchangeable or exercisable securities, as the case may be; P = the proceeds per share of Common Stock of the relevant class or series received by the Company, which (i) in the case of shares of Common Stock of any class or series is the amount received by the Company in consideration for the sale and issuance of such shares; and (ii) in the case of securities convertible into or exchangeable or exercisable for shares of Common Stock of any class or series is the amount received by the Company in consideration for the sale and issuance of such convertible or exchangeable or exercisable securities, plus the minimum aggregate amount of additional consideration, other than the surrender of such convertible or exchangeable securities, payable to the Company upon exercise, conversion or exchange thereof; and M = the Current Market Value as of the Time of Determination or at the time of sale, as the case may be, of a share of Common Stock of the relevant class or series. The adjustment shall become effective immediately after the record date for the determination of shareholders entitled to receive the rights, warrants or options to which this paragraph (b) applies or upon consummation of the sale of Common Stock, as the case may be. To the extent that shares of Common Stock are not delivered after the expiration of such rights, warrants or options, the Exercise Rate for each Warrant then outstanding shall be readjusted to the Exercise Rate which would otherwise be in effect had the adjustment made upon the issuance of such rights, warrants or options been made on the basis of delivery of only the number of shares of Common Stock actually delivered. In the event that such rights or warrants are not so issued, the Exercise Rate for each Warrant then outstanding shall again be adjusted to be the Exercise Rate which would then be in effect if such date fixed for determination of shareholders entitled to receive such rights, warrants or options had not been so fixed. No adjustment shall be made under this paragraph (b) if the application of the formula stated above in this paragraph (b) would result in a value of E1 that is lower than the value of E. No adjustment shall be made under this paragraph (b) for any adjustment which is the subject of paragraphs (a) and (e) of this Section 12. Notwithstanding the foregoing, no adjustment in the Exercise Rate shall be required upon the grant, conversion, exchange or exercise of options to or by officers, directors or employees of the Company to acquire Common Stock that (i) are granted or exercised pursuant to any option or option plan as in effect on the Issue Date or described in the offering memorandum concerning the Units or (ii) have an exercise price, at the time of issuance thereof, at least equal to the then Current Market Value of the Common Stock underlying such options.

Adjustment for Certain Sales of Common Stock Below Current Market Value. (i) If, at any time after the Issue Date, the Company (i) grants issues or sells to any Affiliate of the Company (other than a Subsidiary) or (ii) grants or sells, or offers to grant or sell to all holders of any class or series of Common Stock, shares of any class or series of Common Stock or any securities convertible into or exchangeable or exercisable for any class or series of Common Stock Convertible Security (other than (1A) pursuant to the exercise conversion of the Warrantsany Series A Preferred Stock, (2B) pursuant to any security convertible into, or exchangeable or exercisable for, shares of Common Stock outstanding as of the Issue Date, (3) upon the conversion, exchange or exercise of any convertible, exchangeable or exercisable security Convertible Security outstanding as to which upon the issuance thereof an adjustment pursuant to this Section 12 has been made or (4) upon the conversion, exchange or exercise of convertible, exchangeable or exercisable securities of the Company outstanding on the Issue Date (to the extent in accordance with the terms of such securities Convertible Security as in effect on such date) and/or (C) pursuant to the conversion, exchange or exercise of any Convertible Security as to which upon the issuance thereof an adjustment pursuant to this Section 6.2 has been made (or was not required under the foregoing clause (A) or (B), including any warrants issued to purchasers of the Company's 12 3/4% Senior Subordinated Notes due 2010 ) at a price per share (in the case of any Convertible Security, based on the consideration received for such Convertible Security plus any consideration receivable upon conversion, exchange or exercise, as applicable, each on an as-converted, per share basis) below the then Current Market ValueValue receivable upon conversion, exchange or exercise, as applicable), the Exercise Conversion Rate for each Warrant share of Series A Preferred Stock then outstanding shall be adjusted in accordance with the formula: E/1/ CR(1) = E CR x (O+N) ----------------- ------------------ (O + (N x P/M)) where: E/1/ CR(1) = the adjusted Exercise Conversion Rate for each Warrant then outstandingimmediately after the Time of Determination; E CR = the then pre-adjusted current Exercise Conversion Rate for each Warrant then outstandingimmediately prior to the Time of Determination; O = the aggregate number of shares of Common Stock of all classes outstanding immediately prior to the such issuance or sale of such Common Stock or issuance of securities convertibleConvertible Securities, exchangeable or exercisable for Common Stockas the case may be; N = the number of shares of Common Stock of any class so issued or series so sold or the maximum stated number of shares of Common Stock of any class or series issuable upon the conversion, exchange or exercise of any such convertible, exchangeable or exercisable securitiesConvertible Securities, as the case may be; P = the proceeds per share of Common Stock of the relevant class or series received by the Company, which (i) in the case of shares of Common Stock of any class or series is the amount received by the Company in consideration for the sale and issuance of such shares; and (ii) in the case of securities convertible into or exchangeable or exercisable for shares of Common Stock of any class or series Convertible Securities is the amount received by the Company in consideration for the sale and issuance of such convertible or exchangeable or exercisable securitiesConvertible Securities, plus the minimum aggregate amount of additional consideration, other than the surrender of such convertible or exchangeable securitiesConvertible Securities, payable to the Company upon exercise, conversion or exchange thereof; and M = the Current Market Value as of the Time of Determination or at the time of sale, as the case may be, of a per share of Common Stock of the relevant class or series. The adjustment shall become effective immediately after the record date for the determination of shareholders entitled to receive the rights, warrants or options to which this paragraph (b) applies or upon consummation of the sale of Common Stock, as the case may be. To the extent that shares of Common Stock are not delivered after the expiration of such rights, warrants or options, the Exercise Rate for each Warrant then outstanding shall be readjusted to the Exercise Rate which would otherwise be in effect had the adjustment made upon the issuance of such rights, warrants or options been made on the basis of delivery of only the number of shares of Common Stock actually delivered. In the event that such rights or warrants are not so issued, the Exercise Rate for each Warrant then outstanding shall again be adjusted to be the Exercise Rate which would then be in effect if such date fixed for determination of shareholders entitled to receive such rights, warrants or options had not been so fixed. No adjustment shall be made under this paragraph (b) if the application of the formula stated above in this paragraph (b) would result in a value of E1 that is lower than the value of E. No adjustment shall be made under this paragraph (b) for any adjustment which is the subject of paragraphs (a) and (e) of this Section 12. Notwithstanding the foregoing, no adjustment in the Exercise Rate shall be required upon the grant, conversion, exchange or exercise of options to or by officers, directors or employees of the Company to acquire Common Stock that (i) are granted or exercised pursuant to any option or option plan as in effect on the Issue Date or described in the offering memorandum concerning the Units or (ii) have an exercise price, at the time of issuance thereof, at least equal to the then Current Market Value of the Common Stock underlying such optionsclass.

Adjustment for Certain Sales of Common Stock Below Current Market Value. If, after the Issue Date, the Company (i) grants or sells to any Affiliate of the Company (other than a Subsidiarysubsidiary of the Company) or (ii) grants or sellsgrants, sells or offers to grant or sell to all holders of any class or series of Common Stock, any shares of any class or series of Common Stock or any securities convertible into or exchangeable or exercisable for any class or series of Common Stock (other than (1) pursuant to the exercise of the Warrants, (2) pursuant to any security convertible into, or exchangeable or exercisable for, shares of Common Stock outstanding as of the Issue Date, (3) upon the conversion, exchange or exercise of any convertible, exchangeable or exercisable security as to which upon the issuance thereof an adjustment pursuant to this Section 12 has been made or (4) upon the conversion, exchange or exercise of convertible, exchangeable or exercisable securities of the Company outstanding on the Issue Date (to the extent in accordance with the terms of such securities as in effect on such date), including any warrants issued to purchasers of the Company's 12 3/4% Senior Subordinated Notes due 2010 DB Capital Warrants) at a price per share below the then Current Market Value, the Exercise Rate for each Warrant then outstanding shall be adjusted in accordance with the formula: E/1/ = E x (O+N) ----------------- (O + (N x P/M)) where: E/1/ = the adjusted Exercise Rate for each Warrant then outstanding; E = the then current Exercise Rate for each Warrant then outstanding; O = the aggregate number of shares of Common Stock of all classes outstanding immediately prior to the sale of such Common Stock or issuance of securities convertible, exchangeable or exercisable for Common Stock; N = the number of shares of Common Stock of any class or series so sold or the maximum stated number of shares of Common Stock of any class or series issuable upon the conversion, exchange or exercise of any such convertible, exchangeable or exercisable securities, as the case may be; P = the proceeds per share of Common Stock of the relevant class or series received by the Company, which (i) in the case of shares of Common Stock of any class or series is the amount received by the Company in consideration for the sale and issuance of such shares; and (ii) in the case of securities convertible into or exchangeable or exercisable for shares of Common Stock of any class or series is the amount received by the Company in consideration for the sale and issuance of such convertible or exchangeable or exercisable securities, plus the minimum aggregate amount of additional consideration, other than the surrender of such convertible or exchangeable securities, payable to the Company upon exercise, conversion or exchange thereof; and M = the Current Market Value as of the Time of Determination or at the time of sale, as the case may be, of a share of Common Stock of the relevant class or seriesclass. The adjustment shall become effective immediately after the record date for the determination of shareholders entitled to receive the rights, warrants or options to which this paragraph (b) applies or upon consummation of the sale of Common Stock, as the case may be. To the extent that shares of Common Stock are not delivered after the expiration of such rights, warrants or options, the Exercise Rate for each Warrant then outstanding shall be readjusted to the Exercise Rate which would otherwise be in effect had the adjustment made upon the issuance of such rights, warrants or options been made on the basis of delivery of only the number of shares of Common Stock actually delivered. In the event that such rights or warrants are not so issued, the Exercise Rate for each Warrant then outstanding shall again be adjusted to be the Exercise Rate which would then be in effect if such date fixed for determination of shareholders entitled to receive such rights, warrants or options had not been so fixed. No adjustment shall be made under this paragraph (b) if the application of the formula stated above in this paragraph (ba) would result in a value of E1 that is lower than the value of E. No adjustment shall be made under this paragraph (b) for any adjustment which is the subject of paragraphs (a) and (ed) of this Section 12. Notwithstanding the foregoing, no adjustment in the Exercise Rate shall will be required upon in respect of: (a) the grant, conversion, exchange grant of any stock option or exercise of options to or by officers, directors or employees of the Company to acquire Common Stock that (i) are granted or exercised other stock incentive award pursuant to any stock option or option stock incentive plan or arrangement as in effect on the Issue Date or described disclosed in the offering memorandum concerning Offering Memorandum dated May 5, 2000 relating to the Units Units, (b) the grant of any stock option or (ii) have stock incentive award at an exercise price, at the time of issuance thereof, price at least equal to the lesser of $25.25 per share (other than in the case of Class D Common Stock) or the then Current Market Value Value, (c) the grant of any other stock option or stock incentive award to any officer, director or employee of the Common Stock underlying Company or any of its Subsidiaries pursuant to any compensatory plan or arrangement that has been approved by the Company's Board of Directors, or (d) the exercise of any such optionsoption or award.

Adjustment for Certain Sales of Common Stock Below Current Market Value. If, after the Issue Date, the Company (i) grants or grants, sells to any Affiliate of the Company (other than a Subsidiary) or (ii) grants or sells, or offers to grant or sell to all holders of any class or series Person (i) any shares of Common Stock, shares of any class or series Stock for a consideration per share less than the Current Market Value per Share of Common Stock or any (ii) rights, options or warrants to subscribe for the Company's Common Stock, or securities convertible into into, or exchangeable or exercisable for any class or series of for, the Company's Common Stock in each case to the extent not covered by Section 13(c) (other than (1a) the issuance of Common Stock pursuant to the exercise of the Warrants, (2b) the issuance of Common Stock (or adjustments to exercise or conversion prices) pursuant to options, warrants or convertible securities outstanding at the Issue Date (to the extent and in accordance with the terms of such options, warrants or convertible securities as in effect on the Issue Date), (c) the issuance of options or warrants to employees of the Company or any security convertible into, or exchangeable or exercisable for, shares of its Subsidiaries pursuant to any stock option plans as in effect on the Issue Date and the issuance of Common Stock outstanding as of the Issue Date, (3or adjustments to exercise prices) upon pursuant to such options or warrants or (d) the conversion, exchange or exercise of any convertible, exchangeable or exercisable security (including options or warrants) as to which upon the issuance thereof an has previously been the subject of any required adjustment pursuant to this Section 12 has been made or (4) upon the conversion13 hereof, exchange or exercise of convertible, exchangeable or exercisable securities of the Company outstanding on the Issue Date (to the extent in accordance with the terms of such securities as in effect on such date), including any warrants issued to purchasers of the Company's 12 3/4% Senior Subordinated Notes due 2010 at a price per share below the then Current Market Value, the Exercise Rate for each Warrant then outstanding shall be adjusted in accordance with the formula: E/1/ E' = E x (O+N) ----------------- (O + (N O+(N x P/M)) and the Exercise Price shall be decreased (but not increased) in accordance with the following formula: EP1 = EP x E E1 where: E/1/ E1 = the adjusted Exercise Rate for each Warrant then outstanding; E = the then current Exercise Rate for each Warrant then outstanding; EP = the then current Exercise Price per share for each Warrant then outstanding; EP1 = the adjusted Exercise Price per share for each Warrant then outstanding; O = the aggregate number of shares of Common Stock of all classes outstanding immediately prior to the sale of such Common Stock or issuance of securities convertible, exchangeable or exercisable for Common Stock; N = the number of shares of Common Stock of any class or series so sold or the maximum stated number of shares of Common Stock of any class or series issuable upon the conversion, exchange or exercise of any such convertible, exchangeable or exercisable securities, as the case may be; P = the proceeds per share of Common Stock of the relevant class or series received by the Company, which (i) in the case of shares of Common Stock of any class or series is the amount received by the Company in consideration for the sale and issuance of such shares; and (ii) in the case of securities convertible into or exchangeable or exercisable for shares of Common Stock of any class or series is the amount received by the Company in consideration for the sale and issuance of such convertible or exchangeable or exercisable securities, plus the minimum aggregate amount of additional consideration, other than the surrender of such convertible or exchangeable securities, payable to the Company upon exercise, conversion or exchange thereof; and M = the Current Market Value as of the Time of Determination or at the time of sale, as the case may be, of a share of Common Stock of the relevant class or seriesStock. The adjustment shall become effective immediately after the record date for the determination of shareholders entitled to receive the rights, warrants or options to which this paragraph (b) applies or upon consummation of the sale of Common Stock, as the case may be. To the extent that shares of Common Stock are not delivered after the expiration of such rights, warrants or options, the Exercise Rate and Exercise Price for each Warrant then outstanding shall be readjusted to the Exercise Rate and Exercise Price which would otherwise be in effect had the adjustment made upon the issuance of such rights, warrants or options been made on the basis of delivery of only the number of shares of Common Stock actually delivered. In the event that such rights rights, warrants or warrants options are not so issued, the Exercise Rate and Exercise Price for each Warrant then outstanding shall again be adjusted to be the Exercise Rate and Exercise Price which would then be in effect if such date fixed for determination of shareholders entitled to receive such rights, warrants or options had not been so fixed. No adjustment shall be made under this paragraph (b) if the application of the formula stated above in this paragraph (ba) would result in a value of E1 that is lower than the value of E. No adjustment shall be made under this paragraph (b) for any adjustment which is the subject of paragraphs (a) and (e) of this Section 12. Notwithstanding the foregoing, no adjustment in the Exercise Rate shall be required upon the grant, conversion, exchange or exercise of options to or by officers, directors or employees of the Company to acquire Common Stock that (i) are granted or exercised pursuant to any option or option plan as in effect on the Issue Date or described in the offering memorandum concerning the Units or (ii) have an exercise price, at the time of issuance thereof, at least equal to the then Current Market Value of the Common Stock underlying such options13.