Common use of Adjustment for Merger or Reorganization, etc Clause in Contracts

Adjustment for Merger or Reorganization, etc. If there shall occur any reorganization, recapitalization, amendment of the Certificate of Incorporation, consolidation or merger involving the Corporation in which the Common Stock is converted into or exchanged for securities, cash or other property (excluding a merger solely for the purpose of changing the Corporation’s jurisdiction of incorporation), then automatically, following any such reorganization, recapitalization, amendment, consolidation or merger, in each case pursuant to which shares of Common Stock would be converted into or exchanged for, or would constitute solely the right to receive, cash, securities or other property, each share of Preferred Stock shall be convertible into the kind and amount of securities, cash or other property which a holder of the number of shares of Common Stock issuable upon conversion of one share of Preferred Stock immediately prior to such reorganization, recapitalization, amendment, consolidation or merger would have been entitled to receive pursuant to such transaction; and, in such case, appropriate adjustment (as determined in good faith by the Board) shall be made in the application of the provisions in this Section 9 set forth with respect to the rights and interest thereafter of the Holders, to the end that the provisions set forth in this Section 9 (including provisions with respect to changes in and other adjustments of the Conversion Price) shall thereafter be applicable, as nearly as reasonably may be, in relation to any shares of stock or other property thereafter deliverable upon the conversion of the Preferred Stock. In the event holders of Common Stock have the opportunity to elect the form of consideration to be received in any transaction described by this Section 9, each Holder shall have a reasonable opportunity (which shall be in no event shorter than the election period afforded the holders of Common Stock) to elect the form of consideration into which such Holder’s shares of Preferred Stock shall be convertible as a result of such transaction. The election contemplated by the preceding sentence: (i) will be made on a Holder-by-Holder basis, (ii) will be subject to any limitations to which all of the holders of Common Stock are subject, including, but not limited to, pro rata reductions applicable to any portion of the consideration payable in such transaction and (iii) will be conducted in such a manner as to be completed by the date which is the earlier of: (1) the deadline for elections to be made by holders of Common Stock, and (2) two Trading Days prior to the anticipated effective date of such transaction.

Adjustment for Merger or Reorganization, etc. If there shall occur any reorganization, recapitalization, amendment of the Certificate of Incorporation, consolidation or merger involving the Corporation in which the Common Stock is converted into or exchanged for securities, cash or other property (excluding a merger solely for the purpose of changing the Corporation’s jurisdiction of incorporation), then automaticallythen, following any such reorganization, recapitalization, amendment, consolidation or merger, in each case pursuant to which shares of Common Stock would be converted into or exchanged for, or would constitute solely the right to receive, cash, securities or other property, each share of Preferred Stock shall be convertible into the kind and amount of securities, cash or other property which a holder of the number of shares of Common Stock of the Corporation issuable upon conversion of one share of Preferred Stock immediately prior to such reorganization, recapitalization, amendment, consolidation or merger would have been entitled to receive pursuant to such transaction; and, in such case, appropriate adjustment (as determined in good faith by the Board) shall be made in the application of the provisions in this Section 9 set forth with respect to the rights and interest thereafter of the Holders, to the end that the provisions set forth in this Section 9 (including provisions with respect to changes in and other adjustments of the Conversion Price) shall thereafter be applicable, as nearly as reasonably may be, in relation to any shares of stock or other property thereafter deliverable upon the conversion of the Preferred Stock. In the event holders of Common Stock have the opportunity to elect the form of consideration to be received in any transaction described by this Section 9, each Holder the Corporation shall make adequate provision whereby the Holders shall have a reasonable opportunity (which shall be in no event shorter than the election period afforded the holders of Common Stock) to elect determine the form of consideration into which such Holder’s shares all of the Preferred Stock Stock, treated as a single class, shall be convertible as a result from and after the effective date of such transaction. The election contemplated by the preceding sentencedetermination: (i) will be made on by Holders representing a Holder-by-Holder basisplurality of shares of Preferred Stock participating in such determination, (ii) will be subject to any limitations to which all of the holders of Common Stock are subject, including, but not limited to, pro rata reductions applicable to any portion of the consideration payable in such transaction and (iii) will be conducted in such a manner as to be completed by the date which is the earlier of: (1) the deadline for elections to be made by holders of Common Stock, and (2) two Trading Days prior to the anticipated effective date of such transaction.

Adjustment for Merger or Reorganization, etc. If Subject to the provisions of Section 5(c) above, if at any time or from time to time after the Effective Date there shall occur any capital reorganization, recapitalization, amendment of the Certificate of Incorporationreclassification, consolidation share exchange, restructuring, consolidation, combination or merger involving the Corporation in which the Common Stock (but not the Convertible Preferred Stock) is converted into or exchanged for securities, cash shares of stock or other securities or property (excluding including cash) of the Corporation or otherwise (other than a merger solely for the purpose of changing the Corporation’s jurisdiction of incorporationtransaction covered by Section 5(c) above), then automatically, following any such reorganization, recapitalization, amendment, consolidation or merger, in provision shall be made so that each case pursuant Convertible Preferred Stockholder shall thereafter be entitled to which receive upon conversion of the shares of Common Stock would be converted into or exchanged for, or would constitute solely the right to receive, cash, securities or other property, each share of Convertible Preferred Stock shall be convertible into held by such Convertible Preferred Stockholder the kind and amount number of securities, shares of stock or other securities or property (including cash or other property any combination thereof) of the Corporation or otherwise, to which a holder of Common Stockholder holding the number of shares of Common Stock issuable upon conversion into which the shares of one share of Convertible Preferred Stock held by such Convertible Preferred Stockholder are convertible immediately prior to such reorganization, recapitalization, amendmentreclassification, consolidation or merger would have been entitled to receive pursuant to upon such transaction; and, in such case, appropriate adjustment (as determined in good faith by the Board) shall be made in the application of the provisions in this Section 9 set forth with respect to the rights and interest thereafter of the Holders, to the end that the provisions set forth in this Section 9 (including provisions with respect to changes in and other adjustments of the Conversion Price) shall thereafter be applicable, as nearly as reasonably may be, in relation to any shares of stock or other property thereafter deliverable upon the conversion of the Preferred Stockevent. In the event that the holders of Common Stock have the opportunity to elect the form of consideration to be received in any transaction described by this Section 9the business combination, each Holder then the Corporation shall have a reasonable opportunity (which shall be in no event shorter than the election period afforded make adequate provision whereby the holders of Common Stock) Convertible Preferred Stock shall have the opportunity to elect determine the form of consideration into which such Holder’s shares all of the Convertible Preferred Stock Stock, treated as a single class, shall be convertible as a result from and after the effective date of such transactionbusiness combination. The election contemplated If such opportunity is granted, such determination shall be based on the weighted average of elections made by the preceding sentence: (i) will be made on a Holder-by-Holder basisholders of shares of Convertible Preferred Stock who participate in such determination, (ii) will shall be subject to any limitations to which all of the holders of Common Stock are subject, including, but not limited to, such as pro rata reductions applicable to any portion of the consideration payable in such transaction business combination, and (iii) will shall be conducted in such a manner as to be completed by the date which is the earlier of: earliest of (1) the deadline for elections to be made by holders of Common Stock, Stock and (2) two Trading Days business days prior to the anticipated effective date of the business combination. The Corporation shall provide notice of the determination made by the holders of shares of Convertible Preferred Stock (and the weighted average of elections). If the effective date of a business combination is delayed beyond the initially anticipated effective date, the holders of shares of Convertible Preferred Stock shall be given the opportunity to make subsequent similar determinations in regard to such delayed effective date. Further, the Corporation shall not effect any such consolidation, merger or sale, unless prior to the consummation thereof, the successor entity (if other than the Corporation) resulting from consolidation or merger or the entity purchasing such assets assumes by written instrument, the obligation to deliver to each such holder such shares of stock, securities or assets as, in accordance with the foregoing provisions, such holder may be entitled to acquire. If a conversion of Convertible Preferred Stock is to be made in connection with a transaction contemplated by this Section 5(d) or a similar transaction affecting the Corporation (other than a tender or exchange offer), the conversion of any shares of Convertible Preferred Stock may, at the election of the holder thereof, be conditioned upon the consummation of such transaction, in which case such conversion shall not be deemed to be effective until such transaction has been consummated. In connection with any tender or exchange offer for shares of Common Stock, holders of Convertible Preferred Stock shall have the right to tender (or submit for exchange) shares of Convertible Preferred Stock in such a manner so as to preserve the status of such shares as Convertible Preferred Stock until immediately prior to such time as shares of Common Stock are to be purchased (or exchanged) pursuant to such offer, at which time that portion of the shares of Convertible Preferred Stock so tendered which is convertible into the number of shares of Common Stock to be purchased (or exchanged) pursuant to such offer shall be deemed converted into the appropriate number of shares of Common Stock. Any shares of Convertible Preferred Stock not so converted shall be returned to the holder as Convertible Preferred Stock. None of the foregoing provisions shall affect the right of a holder of shares of Convertible Preferred Stock to convert such holder’s shares of Convertible Preferred Stock into shares of Common Stock prior to the effective date of such business combination. In any such case, appropriate adjustment shall be made in the application of the provisions of this Section 5(d) with respect to the rights and interests of the Convertible Preferred Stockholders after such events to the end that the provisions of this Section 5(d) (including adjustment of the Convertible Preferred Conversion Price in respect of any shares of Convertible Preferred Stock then in effect and the number of shares issuable upon conversion of all such shares of Convertible Preferred Stock) shall be applicable after that event as nearly reasonably as may be. The Corporation may not become a party to any such transaction unless its terms are consistent with the preceding requirements and such transaction is otherwise effected in accordance with this Certificate.

Adjustment for Merger or Reorganization, etc. (A) If there shall occur any reorganization, recapitalization, amendment the Company distributes to all holders of the Certificate of Incorporation, consolidation or merger involving the Corporation in which the Common Stock is converted into or exchanged for securities, cash or other property (excluding a merger solely for the purpose of changing the Corporation’s jurisdiction of incorporation), then automatically, following any such reorganization, recapitalization, amendment, consolidation or merger, in each case pursuant to which shares of Common Stock would be converted into evidences of indebtedness, shares of capital stock (other than Common Stock) or exchanged forother assets (including securities, but excluding any dividend or distribution referred to in clause (i); any rights or warrants referred to in clause (ii) above; any consideration payable in connection with a tender offer made by the Company or any of its Affiliates referred to in clause (v) below; and any dividend of shares of capital stock of any class or series, or would constitute solely similar equity interests, of or relating to a Subsidiary or other business unit in the right case of a spin-off to which the following clause (iv)(B) applies), then the Conversion Price in effect immediately following the Close of Business on the record date for such distribution shall be divided by the following fraction: SP0- FMV where SP0 = the Closing Sale Price per share of Common Stock on the Trading Day immediately preceding the Ex-Date for such distribution; and FMV = the fair market value of the portion of the distribution applicable to one share of Common Stock at the Close of Business on the Trading Day immediately preceding the Ex-Date as determined by the Board of Directors. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing adjustment to the Conversion Price, each holder of Preferred Stock shall receive, cash, securities or other property, for each share of Preferred Stock shall be convertible into Stock, at the kind same time and amount of securities, cash or other property which a holder upon the same terms as holders of the Common Stock, the amount and kind of such distributed assets that such holder would have received as if such holder owned a number of shares of Common Stock issuable upon conversion equal to the Conversion Ratio in effect on the record date for the distribution. (B) In a spin-off, where the Company makes a distribution to all holders of one share shares of Preferred Common Stock consisting of capital stock of any class or series, or similar equity interests, of or relating to, a Subsidiary or other business unit where such capital stock or similar equity interests are, or will be when issued, listed or admitted for trading on a National Securities Exchange, the Conversion Price shall be adjusted at the Close of Business on the tenth Trading Day after the Ex- Date of the distribution by dividing such Conversion Price in effect immediately prior to the Opening of Business on such reorganization, recapitalization, amendment, consolidation or merger would have been entitled to receive pursuant to tenth Trading Day by the following fraction: MP0+ MPs MP0 where MP0 = the average of the Closing Sale Price of the Common Stock over each of the first 10 Trading Days commencing on and including the Ex-Date of such transactiondistribution; and, in such case, appropriate adjustment (as determined in good faith by the Board) shall be made in the application of the provisions in this Section 9 set forth with respect to the rights and interest thereafter of the Holders, to the end that the provisions set forth in this Section 9 (including provisions with respect to changes in and other adjustments of the Conversion Price) shall thereafter be applicable, as nearly as reasonably may be, in relation to any shares of stock or other property thereafter deliverable upon the conversion of the Preferred Stock. In the event holders of Common Stock have the opportunity to elect the form of consideration to be received in any transaction described by this Section 9, each Holder shall have a reasonable opportunity (which shall be in no event shorter than the election period afforded the holders of Common Stock) to elect the form of consideration into which such Holder’s shares of Preferred Stock shall be convertible as a result of such transaction. The election contemplated by the preceding sentence: (i) will be made on a Holder-by-Holder basis, (ii) will be subject to any limitations to which all of the holders of Common Stock are subject, including, but not limited to, pro rata reductions applicable to any portion of the consideration payable in such transaction and (iii) will be conducted in such a manner as to be completed by the date which is the earlier of: (1) the deadline for elections to be made by holders of Common Stock, and (2) two Trading Days prior to the anticipated effective date of such transaction.