Common use of Assumption; Organic Changes Clause in Contracts

Assumption; Organic Changes. (A) The Company shall not consummate a Major Transaction in which (X) the Company is not the surviving entity or as a result of which the Company has a new Parent Entity, and (Y) the Person that acquires the Company’s assets or Common Stock (or Parent Entity thereof) or becomes a new Parent Entity of the Company, as applicable, is a publicly traded corporation (or similar entity) whose common stock or equivalent equity security is quoted, listed or traded on an Eligible Market (an “Assumption Qualifying Major Transaction”), with respect to which Holder has delivered an Assumption Election Notice, unless the Successor Entity assumes in writing all of the obligations of the Company under this Warrant, the Facility Agreement (as it relates to this Warrant and the Warrant Shares) and the Registration Rights Agreement in accordance with the provisions of this Section 5(c)(ii) pursuant to written agreements in form and substance reasonably satisfactory to Holder and approved by Holder prior to the consummation of such Assumption Qualifying Major Transaction (such approval not to be unreasonably withheld, conditioned or delayed), including agreements to deliver to Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant that, among other things, (1) is exercisable for the appropriate number of shares of the Successor Entity’s capital stock (without regard to the 9.985% Cap or any other restriction or limitation on exercise; provided that such instrument shall contain a limitation on exercise comparable to that contained in the second paragraph of Section 1 of this Warrant), (2) has an exercise price similar to the then-effective Exercise Price (taking into account the relative value of Common Stock compared to the capital stock of the Successor Entity implied by the terms of such Assumption Qualifying Major Transaction, and any conversion or exchange ratio applicable to the Common Stock in such Assumption Qualifying Major Transaction) and exercise price adjustment provisions similar to those in this Warrant; (3) entitles Holder to such additional securities or other consideration, if any, as Holder would be entitled pursuant to Section 5(c)(i) in connection with such Assumption Qualifying Major Transaction; and (4) provides for registration rights similar to those provided by the Registration Rights Agreement and otherwise reasonably satisfactory to Holder. Upon the occurrence of any Assumption Qualifying Major Transaction with respect to which Holder shall have delivered an Assumption Election Notice, any Successor Entity shall succeed to, and be substituted for (so that, from and after the date of such Assumption Qualifying Major Transaction, the provisions of this Warrant and the Registration Rights Agreement referring to the “Company” shall refer instead to the Successor Entity, and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein. Upon consummation of such Assumption Qualifying Major Transaction, such a Successor Entity shall deliver to Holder confirmation that there shall be issued upon exercise of this Warrant at any time after the consummation of such Assumption Qualifying Major Transaction, in lieu of shares of Common Stock (or other securities, cash, assets and/or other property) issuable upon the exercise of this Warrant prior to such Assumption Qualifying Major Transaction, such shares of publicly traded common stock or equivalent equity securities of the Successor Entity, as adjusted in accordance with the provisions of this Warrant. The provisions of this Section shall apply similarly and equally to successive Assumption Qualifying Major Transactions and shall be applied without regard to any limitations on the exercise of this Warrant. (B) Any recapitalization, reorganization, reclassification, consolidation, merger, or any other transaction (including any Major Transaction as to which Holder has not exercised any of its rights pursuant to Section 5(c)(i)), in each case, that is effected in such a way that holders of Common Stock are entitled to

Assumption; Organic Changes. (A) The If the Company shall not consummate consummates a Major Transaction (other than a Takeout Major Transaction or Asset Sale) in which (X) the Company is not the surviving entity or as a result of which the Company has a new Parent Entity, and (Y) the Person that acquires the Company’s assets or Common Stock (or Parent Entity thereof) or becomes a new Parent Entity of the Company, as applicable, is a publicly traded corporation (or similar entity) whose common stock or equivalent equity security is quoted, listed or traded on an Eligible Market (an “Assumption Qualifying Major Transaction”), with respect to which Holder Xxxxxx has delivered an Assumption Election Notice, unless the Successor Entity assumes shall assume in writing all of the obligations of the Company under this Warrant, the Facility Registration Rights Agreement (and the Credit Agreement as it relates to this Warrant and the Warrant Shares) and the Registration Rights Agreement , if any, in accordance with the provisions of this Section 5(c)(ii) pursuant to written agreements in form and substance reasonably satisfactory to Holder and approved by Holder prior to the consummation of such Assumption Qualifying Major Transaction (such approval not to be unreasonably withheld, conditioned or delayed), including agreements agreement to deliver to Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant that, among other things, (1) is exercisable for the appropriate number of shares of the Successor Entity’s capital stock (without regard to the 9.985% Beneficial Ownership Cap or any other restriction or limitation on exercise; provided that such instrument shall contain a limitation on exercise comparable to that contained in the second paragraph of Section 1 of this WarrantWarrant with respect to the Successor Entity’s capital stock), (2) has an exercise price similar to the then-effective Exercise Price (taking into account the relative value of Common Stock compared to the capital stock of the Successor Entity implied by the terms of such Assumption Qualifying Major Transaction, and any conversion or exchange ratio applicable to the Common Stock in such Assumption Qualifying Major Transaction) and exercise price adjustment provisions similar to those in this Warrant; (3) entitles Holder to such additional securities or other consideration, if any, as Holder would be entitled pursuant to Section 5(c)(i) in connection with such Assumption Qualifying Major Transaction; and (4) provides for registration rights similar to those provided by the Registration Rights Agreement and otherwise reasonably satisfactory to Holder. Upon the occurrence of any Assumption Qualifying Major Transaction with respect to which Holder shall have delivered an Assumption Election Notice, any Successor Entity shall succeed to, and be substituted for (so that, from and after the date of such Assumption Qualifying Major Transaction, the provisions of this Warrant and the Registration Rights Agreement referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein. Upon consummation of such Assumption Qualifying Major Transaction, such a Successor Entity shall deliver to Holder confirmation that there shall be issued upon exercise of this Warrant at any time after the consummation of such Assumption Qualifying Major Transaction, in lieu of shares of Common Stock (or other securities, cash, assets and/or other property) issuable upon the exercise of this Warrant prior to such Assumption Qualifying Major Transaction, such shares of publicly traded common stock or equivalent equity securities of the Successor Entity, as adjusted in accordance with the provisions of this Warrant. The provisions of this Section shall apply similarly and equally to successive Assumption Qualifying Major Transactions and shall be applied without regard to any limitations on the exercise of this Warrant. (B) Any recapitalization, reorganization, reclassification, consolidation, merger, or any other transaction (other than a Takeout Major Transaction or Asset Sale, but including any other Major Transaction as to which Holder has not exercised any of its rights pursuant to Section 5(c)(i)), in each case, that is effected in such a way that holders of Common Stock are entitled to receive (either directly or upon subsequent liquidation) stock, securities or assets with respect to, or in exchange for, Common Stock is referred to herein as an “Organic Change.” Prior to the consummation of any Organic Change, the Company will make appropriate provision to ensure that Holder will thereafter have the right to acquire and receive in lieu of the shares of Common Stock otherwise acquirable or receivable upon the exercise of this Warrant (without regard to the Beneficial Ownership Cap or any other restriction or limitation on exercise), such shares of stock, securities and/or assets as would have been issued or payable in such Organic Change with respect to, or in exchange for, the number of shares of Common Stock that would have been acquirable or receivable upon the exercise of this Warrant immediately prior to such Organic Change (without regard to the Beneficial Ownership Cap or any other restriction or limitation on exercise). In any such case, the Company will make appropriate provision with respect to Xxxxxx’s rights and interests to ensure that the provisions of this Section 5(c)(ii) will thereafter be applicable to this Warrant. The Company shall not effect any Non-Surviving Organic Change (as defined below), unless prior to the consummation thereof, the Acquiring Entity (as defined below) provides a written agreement to deliver to Holder, upon exercise of this Warrant, such shares of stock, securities and/or assets as would have been issued or payable in such Non-Surviving Organic Change with respect to, or in exchange for, the number of shares of Common Stock that would have been acquirable or receivable upon the exercise of this Warrant immediately prior to such Organic Change (without regard to the Beneficial Ownership Cap) or any other restriction or limitation on exercise). For purposes of this Warrant, “Non-Surviving Organic Change” means any Organic Change following which the Company is not a surviving entity or as a result of which the Company has a new parent company; and “Acquiring Entity” means the Person purchasing assets of the Company in a Non-Surviving Organic Change or the successor or new parent company resulting from any Non-Surviving Organic Change. Notwithstanding the foregoing, in no event shall a Major Transaction be subject to the provisions of this Section 5(c)(ii).