Common use of Adjustment for Common Stock Issue Clause in Contracts

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock (other than shares issued pursuant to a stock option plan for officers, directors and/or employees of the Company) for a consideration per share less than the Current Market Price per share on the date the Company fixes the offering price of such additional shares, the Exercise Rate shall be adjusted so that the Exercise Rate shall be determined by multiplying the number of Warrant Shares therefore purchasable upon the exercise of each Warrant by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on the date of such issuance (including the additional shares of Common Stock being issued) and the denominator of which shall be an amount equal to the sum of (i) the total number of shares of Common Stock outstanding immediately prior to such issuance plus (ii) the number of shares which the aggregate purchase price paid for the issuance would purchase at the Current Market Price per share of Common Stock on the date of issuance. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to (w) any of the transactions described in subsections (a), (b) and (c) of this Section 12, (x) the exercise of the Warrants, or the conversion or exchange of other securities convertible or exchangeable for Common Stock, (y) Common Stock upon the exercise of rights or warrants issued to the holders of Common Stock, (z) Common Stock issued to shareholders of any person that is not affiliated with the Company and that merges into the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such merger.

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock (other than shares issued pursuant to a stock option plan for officers, directors and/or employees of the Company) for a consideration per share less than the Current Market Price Fair Value per share on the date the Company fixes the offering price of such additional shares, the Exercise Rate Price shall be adjusted so that in accordance with the formula: P ----- E' = E x O + M ------------------- A where: E' = the adjusted Exercise Rate shall be determined by multiplying Price. E = the number of Warrant Shares therefore purchasable upon the exercise of each Warrant by a fraction, the numerator of which shall be then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of Common Stock outstanding such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the Fair Value per share on the date of issuance of such issuance (including the additional shares of Common Stock being issued) and the denominator of which shall be an amount equal to the sum of (i) the total number of shares of Common Stock outstanding immediately prior to such issuance plus (ii) shares. A = the number of shares which the aggregate purchase price paid for outstanding immediately after the issuance would purchase at the Current Market Price per share of Common Stock on the date of issuancesuch additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to to: (w1) any of the transactions described in subsections (a), (b) and (c) of this Section 12, 8, (x2) the exercise of the Warrants, or the conversion or exchange of other securities convertible or exchangeable for Common Stock, Stock the issuance of which caused an adjustment to be made under Section 8(e), (y3) Common Stock upon the exercise of rights or warrants issued to the Company's employees, independent contractors or directors (or employees, independent contractors or directors of its subsidiaries) under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common StockStock when required by law, if such Common Stock would otherwise be covered by this subsection (zd) (but only to the extent that the aggregate number of shares excluded hereby and issued after the date of this Warrant Agreement shall not exceed 5% of the Common Stock outstanding at the time of the adoption of each such plan, exclusive of anti-dilution adjustments thereunder), (4) Common Stock issued to shareholders of any person that is not affiliated with the Company and that which merges into the Company Company, or with a subsidiary of the Company, in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, provided that if such person is an Affiliate of the Company, the Board of Directors shall have obtained a fairness opinion from a nationally recognized investment banking, appraisal or valuation firm, which is not an Affiliate of the Company, stating that the consideration received in such merger is fair to the Company from a financial point of view, (5) the issuance of shares of Common Stock pursuant to rights, options or warrants which were originally issued in a Non-Affiliate Sale (as defined below) together with one or more other securities as part of a unit at a price per unit. (6) Common Stock issued to employees, independent contractors or directors of the Company and any of its Restricted Subsidiaries (as defined in the Indenture) within six months of the Closing Date.

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock (other than shares issued pursuant to a stock option plan for officers, directors and/or employees of the Companyincluding treasury shares) for a consideration per share less than the Current Market Price Specified Value per share on the date the Company fixes the offering price of such additional shares, the Exercise Rate Warrant Number shall be adjusted so that in accordance with the Exercise Rate shall be determined by multiplying following formula: W' = W {A [O + (P M)]} where: W' = the number of adjusted Warrant Shares therefore purchasable upon Number. W = the exercise of each Warrant by a fraction, Number immediately prior to any such issuance. O = the numerator of which shall be the number of shares of Common Stock outstanding on the date of such issuance (including the additional shares of Common Stock being issued) and the denominator of which shall be an amount equal to the sum of (i) the total number of shares of Common Stock outstanding immediately prior to the issuance of such issuance plus (ii) the number additional shares of shares which Common Stock. P = the aggregate purchase price paid consideration received for the issuance would purchase at of such additional shares of Common Stock. M = the Current Market Price Specified Value per share of Common Stock on the date of issuanceissuance of such additional shares. A = the number of shares of Common Stock outstanding immediately after the issuance of such additional shares of Common Stock. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to (w) any of the transactions described in subsections subsection (a), (b) and (c) of this Section 12, (x) the exercise of the Warrants, 8 or the conversion or exchange issuances described below: (i) The issuance of other securities convertible or exchangeable for Common Stock, (y) Common Stock upon the conversion, exercise or exchange of any Convertible Securities (as defined below), including the Warrants, outstanding on the date hereof or for which an adjustment has been made pursuant to this Section 8; or (A) The grant of rights to purchase shares of Common Stock and the issuance of such shares of Common Stock upon exercise of rights such rights, to directors, members of management or warrants issued to the holders employees of Common Stock, (z) Common Stock issued to shareholders of any person that is not affiliated with the Company and that merges into its subsidiaries pursuant to management incentive plans, employee incentive plans, stock option and stock purchase plans or agreements adopted by the board of directors of the Company and (B) following the acquisition by the Company of any of the rights or shares referred to in proportion clause (A) the reissuance of any such acquired rights and the issuance of shares of Common Stock upon exercise thereof and (C) the grant of any rights under a phantom stock plan, stock appreciation rights plan or other deferred compensation plan to their stock holdings officers, directors or employees of such person immediately prior to such merger, upon such mergerthe Company and its subsidiaries.

Adjustment for Common Stock Issue. If In case the Company issues shall issue shares of its capital stock, shares of its Common Stock, Rights containing the right to subscribe for or purchase shares of Common Stock Convertible Securities with respect to Common Stock or Rights to subscribe for or purchase such Convertible Securities (other than shares collectively, the "Securities") (excluding the issuance of (i) shares, Rights or Convertible Securities issued pursuant in any of the transactions described in paragraph (a), (b) or (c) above, (ii) Warrant Shares issued upon exercise of the Warrants and (iii) Securities to a stock option plan for officers, directors and/or or employees of the Company) for Company as incentive compensation pursuant to incentive compensation plans adopted by the Company at a Price Per Share of Common Stock, in the case of the issuance of Common Stock, or at a Price Per Share of Common Stock initially deliverable upon conversion or exercise or exchange of such Securities, in each case, together with any other consideration per share less received by the Company in connection with such issuance, more than 10% lower than the then Current Market Price per share of Common Stock on the date the Company fixes fixed the offering offering, conversion or exercise or exchange price of such additional shares, then the Exercise Rate shall be adjusted so that number of Warrant Shares thereafter purchasable upon the Exercise Rate exercise of each Warrant shall be determined by multiplying the number of Warrant Shares therefore theretofore purchasable upon the exercise of each Warrant by a fraction, the numerator of which shall be the total number of shares of Common Stock outstanding on the such date of such issuance (including plus the additional shares number of Shares of Common Stock being issued) offered for subscription or purchase and the denominator of which shall be an amount equal to the sum of (i) the total number of shares of Common Stock outstanding immediately prior to on such issuance date plus (ii) the number of shares of Common Stock which the aggregate purchase price paid for Proceeds of the issuance total amount of Securities so offered would purchase at the Current Market Price per share Per Share of Common Stock on at such record date. In case the date Company shall issue and sell Securities for a consideration consisting, in whole or in part, of issuanceproperty other than cash or its equivalent, then in determining the "Price Per Share" of Common Stock and the "consideration received by the Company" for purposes of the first sentence and the immediately preceding sentence of this paragraph (d), the Board of Directors of the Company shall reasonably and in good faith determine the fair value of such property. The determination of whether any adjustment is required under this paragraph (d), by reason of the sale and issuance of any Securities and the amount of such adjustment, if any, shall be made successively whenever any at such time and not at the subsequent time of issuance is madeof shares of Common Stock upon the exercise, and shall become effective immediately after such issuance. This subsection (d) does not apply to (w) any of the transactions described in subsections (a), (b) and (c) of this Section 12, (x) the exercise of the Warrants, or the conversion or exchange of other securities convertible or exchangeable for Common Stock, (y) Common Stock upon the exercise of rights or warrants issued to the holders of Common Stock, (z) Common Stock issued to shareholders of any person that is not affiliated with the Company and that merges into the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such mergerSecurities.

Adjustment for Common Stock Issue. (i) If the Company issues shares of Common Stock (other than shares issued pursuant to a stock option plan for officers, directors and/or employees of the Company) for a consideration per share less than the Current Fair Market Price Value per share on the date the Company fixes the offering price of such additional shares, the Exercise Rate Price shall be adjusted so that in accordance with the formula: P --- E' = E x O + M ------------------- A where: E' = the adjusted Exercise Rate shall be determined by multiplying Price. E = the number of Warrant Shares therefore purchasable upon the exercise of each Warrant by a fraction, the numerator of which shall be then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of Common Stock outstanding such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the Fair Market Value per share on the date of issuance of such issuance (including the additional shares of Common Stock being issued) and the denominator of which shall be an amount equal to the sum of (i) the total number of shares of Common Stock outstanding immediately prior to such issuance plus (ii) shares. A = the number of shares which the aggregate purchase price paid for outstanding immediately after the issuance would purchase at the Current Market Price per share of Common Stock on the date of issuancesuch additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. . (ii) This subsection (dSECTION 8(D) does shall not apply to to: (w1) any of the transactions described in subsections SUBSECTIONS (aA), (bB) and (cC) of this Section 12, SECTION 8, (x2) the exercise of Warrants, (3) the Warrantsconversion, exchange or exercise of securities outstanding as of the conversion date hereof and convertible into or exchange of exchangeable or exercisable for Common Stock or other securities convertible and the issuance of any securities which requires an adjustment to be made under SECTION 8(E) or exchangeable for Common Stock, does not require an adjustment pursuant to the last two paragraphs of SECTION 8(E), (y4) the issuance of Common Stock upon (and warrants or options exercisable therefore) to employees, officers, consultants or directors of the exercise Company or its subsidiaries under bona fide employee benefit plans or otherwise by written agreement adopted by the Board of rights or warrants issued to Directors and approved when required by law by the holders of Common Stock, (z) if such Common Stock would otherwise be covered by this SECTION 8(D) (but only to the extent that the aggregate number of shares excluded hereby and issued after the date of this Warrant Agreement shall not exceed 25% of the Common Stock outstanding at the time of the adoption of any such plan or written agreement), (5) the issuance of Common Stock to shareholders or equity holders of any person that is not affiliated with the Company and Person that merges with or into the Company Company, or with or into any subsidiary of the Company, in proportion to their such shareholders' or equity holders' stock or equity holdings of such person Person immediately prior to such merger, upon in connection with such merger; PROVIDED that if such Person is an Affiliate of the Company and any such transaction or series of transactions has an aggregate value of $1,000,000 or more, the Board of Directors, including a majority of the independent directors, shall have determined that the consideration received by the Company in such merger is fair to the Company from a financial point of view; provided further that if the Board of Directors shall not include at least one independent director who was appointed, nominated or designated to the Board of Directors other than through any right of appointment, nomination or designation by an Affiliate of the Company, the Company shall have obtained a fairness opinion from a nationally recognized investment banking, appraisal or valuation firm which is not an Affiliate of the Company to the effect that the consideration received by the Company in such merger is fair to the Company from a financial point of view, (6) the issuance of securities upon the conversion, exchange or exercise of other securities, warrants, options or similar rights if the effective conversion, exchange or exercise price is not less than the Fair Market Value per share of such security at the time the security, warrant, option or right so converted, exchanged or exercised was issued or granted, or (7) the issuance of shares of Common Stock pursuant to rights, options or warrants which were originally issued in a Non-Affiliate Sale (as defined below) together with one or more other securities as part of a unit at a price per unit.

Adjustment for Common Stock Issue. If the Company Holdings issues shares of Common Stock (other than shares issued pursuant to a stock option plan for officers, directors and/or employees of the Company) for a consideration per share less than the Current Market Price per share on the date Holdings E' = E x O + N ------------ N x P O + ----- M where: E' = the Company fixes adjusted Exercise Rate. E = the offering price of such additional shares, then current Exercise Rate. O = the Exercise Rate shall be adjusted so that the Exercise Rate shall be determined by multiplying the number of Warrant Shares therefore purchasable upon the exercise of each Warrant by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on the date of such issuance (including the additional shares of Common Stock being issued) and the denominator of which shall be an amount equal to the sum of (i) the total number of shares of Common Stock outstanding immediately prior to the issuance of such issuance plus additional shares (ii) assuming the conversion, exercise or exchange of all Rights and convertible securities into shares of Common Stock). N = the number of additional shares which of Common Stock issued. P = the aggregate purchase price paid consideration received per share for the issuance would purchase at of such additional shares of Common Stock. M = the Current Market Price per share of Common Stock on the date of issuanceissuance of such additional shares of Common Stock. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection CLAUSE (dD) does not apply to to: (w1) any of the transactions described in subsections CLAUSES (aA), (bB), (C) and or (cE) of this Section 12, SECTION 10 (xincluding transactions referred to in such clauses as not being subject thereto), (2) the exercise of the Warrants, or the conversion or exchange of other securities convertible or exchangeable for Common Stock, , (y3) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, , (z4) Common Stock issued to shareholders stockholders of any person that is not affiliated with the Company Holdings and that merges into the Company Holdings, or with a subsidiary of Holdings, in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, (5) Common Stock issued to persons in a bona fide public offering pursuant to a firm commitment underwriting, or (6) Common Stock issued to persons who are not affiliates of Holdings in a bona fide private placement through a placement agent that is a member firm of the NASD (except to the extent that any discount from the Current Market Price attributable to restrictions on transferability of the Common Stock, as determined in good faith by the Board of Directors pursuant to CLAUSE (N) of SECTION 10 and described in a Board resolution, shall exceed 5%).

Adjustment for Common Stock Issue. If the Company Holdings issues shares of Common Stock (other than shares issued pursuant to a stock option plan for officers, directors and/or employees of the Company) for a consideration per share less than the Current Market Price per share on the date the Company Holdings fixes the offering price of such additional shares, the Exercise Rate shall be adjusted so that in accordance with the formula: E' = E x O + N ---------- N x P O + ----- M where: E' = the adjusted Exercise Rate shall be determined by multiplying Rate. E = the number of Warrant Shares therefore purchasable upon then current Exercise Rate. O = the exercise of each Warrant by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on the date of such issuance (including the additional shares of Common Stock being issued) and the denominator of which shall be an amount equal to the sum of (i) the total number of shares of Common Stock outstanding immediately prior to the issuance of such issuance plus additional shares (ii) assuming the conversion, exercise or exchange of all Rights and convertible securities into shares of Common Stock). N = the number of additional shares which of Common Stock issued. P = the aggregate purchase price paid consideration received per share for the issuance would purchase at of such additional shares of Common Stock. M = the Current Market Price per share of Common Stock on the date of issuanceissuance of such additional shares of Common Stock. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection CLAUSE (dD) does not apply to to: (w1) any of the transactions described in subsections CLAUSES (a), (b) and ), (c) or (e) of this Section 12, SECTION 10 (xincluding transactions referred to in such clauses as not being subject thereto), (2) the exercise of the Warrants, or the conversion or exchange of other securities convertible or exchangeable for Common Stock, , (y3) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, , (z4) Common Stock issued to shareholders stockholders of any person that is not affiliated with the Company Holdings and that merges into the Company Holdings, or with a subsidiary of Holdings, in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, (5) Common Stock issued to persons in a bona fide public offering pursuant to a firm commitment underwriting, or (6) Common Stock issued to persons who are not affiliates of Holdings in a bona fide private placement through a placement agent that is a member firm of the NASD (except to the extent that any discount from the Current Market Price attributable to restrictions on transferability of the Common Stock, as determined in good faith by the Board of Directors pursuant to CLAUSE (N) of SECTION 10 and described in a Board resolution, shall exceed 5%).

Adjustment for Common Stock Issue. If the Company issues after the date hereof shares of Common Stock or securities convertible into or exercisable for Common Stock ("Convertible Securities") to KSCN Acquisition Company and its Affiliates, Kolhberg & Company, LLC and its Affiliates, Xxxxxxx X. Xxxxxxxx and his Affiliates, or any other Affiliates of the Company (other than shares issued pursuant to a stock option plan for officersoptions outstanding on the date hereof), directors and/or employees of the Company) for a consideration per share less than the Current Market Price current market price per share of Common Stock on the date the Company fixes the offering offering, conversion or exercise price of such additional shares, the Exercise Rate Price shall be adjusted so that in accordance with the following formula: P - E' = x O + M ----------- A where: E' = the adjusted Exercise Rate shall be determined by multiplying Price. E = the number of Warrant Shares therefore purchasable upon then current Exercise Price. O = the exercise of each Warrant by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on the date of such issuance (including the additional shares of Common Stock being issued) and the denominator of which shall be an amount equal to the sum of (i) the total number of shares of Common Stock outstanding immediately prior to the issuance of such issuance plus (ii) the number of shares which additional securities. P = the aggregate purchase price paid consideration received for the issuance would purchase at of such additional securities. M = the Current Market Price current market price per share of Common Stock on the date of issuanceissuance of such additional securities. A = the number of shares of Common Stock outstanding immediately after the issuance of such additional securities, assuming conversion or exercise thereof if applicable. Affiliate shall mean, with respect to any specified person, any other person who directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such specified person. The Exercise Price shall be adjusted as provided in this subsection (d) on the basis that (1) the maximum number of additional shares of Common Stock necessary to effect the conversion or exchange of all such Convertible Securities shall be deemed to have been issued as of the date of such issuance or sale and (2) the aggregate consideration received for such additional shares of Common Stock shall be deemed equal to the minimum consideration received and receivable by the Company in connection with the issuance and exercise of such Convertible Securities. For the purposes of this subsection, the adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance; PROVIDED, HOWEVER, that no further adjustment of the Exercise Price shall be made upon the actual issuance of Common Stock upon conversion or exchange of Convertible Securities. This subsection (d) does not apply to (w) In the event any of the transactions described in subsections (a)Convertible Securities are not converted prior to redemption or maturity, (b) and (c) of this Section 12, (x) the exercise of the Warrants, or an adjustment was made with respect to the conversion or exchange of such Convertible Securities, then a subsequent readjustment shall be effected to give effect to only those shares of Common Stock actually issued upon conversion or exercise. (i) In the case of securities or other property, at the lesser of (1) the current market price of the security for which such consideration was received, and (2) the fair market value of such consideration (in both cases as of the date immediately preceding the issuance or sale in question). (ii) In the event additional shares of Common Stock are issued or sold together with other securities convertible or exchangeable other assets of the Company for Common Stocka consideration which covers both, the consideration received (ycomputed as provided in (i) above) shall be allocable to such additional shares of Common Stock as determined in good faith by the Board of Directors. (iii) In case any stock purchase rights or Convertible Securities shall be issued or sold together with other securities or other assets of the Company, together comprising one integral transaction in which no specific consideration is allocated to the stock purchase rights or Convertible Securities, an allocation between the components will be determined in good faith by the Board of Directors. (iv) The consideration for which shares of Common Stock shall be deemed to be issued upon the issuance of any stock purchase rights or Convertible Securities shall be determined by dividing (1) the total consideration, if any, received or receivable by the Company as consideration for the granting of such stock purchase rights or the issuance of such Convertible Securities, plus the minimum aggregate amount of additional consideration payable to the Company upon the exercise of such stock purchase rights, or, in the case of such Convertible Securities, the minimum aggregate amount of additional consideration, if any, payable upon the conversion or exchange thereof, in each case after deducting any accrued interest, dividends, or any expenses paid or incurred or any underwriting commissions or concessions paid or allowed by the Company, by (2) the maximum number of shares of Common Stock issuable upon the exercise of such stock purchase rights or warrants issued to upon the holders conversion or exchange of Common Stock, (z) Common Stock issued to shareholders of any person that is not affiliated with the Company and that merges into the Company in proportion to their stock holdings of all such person immediately prior to such merger, upon such mergerConvertible Securities.