Common use of Certain Acquisitions Clause in Contracts

Certain Acquisitions. Notwithstanding Section 1.6.2 above, in the event that the acquirer in an Acquisition (other than an acquisition in which the consideration received by the Company's stockholders consists solely of cash and/or cash equivalents) does not agree to assume this Warrant at and as of the closing thereof, this Warrant, to the extent not exercised or converted on or prior to such closing, shall terminate and be of no further force and effect as of immediately following such closing if all of the following conditions are met: (i) the acquirer is subject to the reporting requirements of Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended, (ii) the class of stock or other security of the acquire that would be received by Holder in connection with such Acquisition were Holder to exercise or convert this Warrant on or prior to the closing thereof is listed for trading on a national securities exchange or approved for quotation on an automated inter-dealer quotation system, (iii) the value (determined as of the closing of such Acquisition in accordance with the definitive agreements therefor) of the acquirer stock and/or other securities that would be received by Holder in respect of each Share were Holder to exercise or convert this Warrant on or immediately prior to the closing of such Acquisition is equal to or greater than 3.5 times the then-effective Warrant Price, (iv) Holder would be able to publicly resell all of the acquirer stock and/or other securities that would be received by Holder in such Acquisition were Holder to exercise or convert this Warrant on or prior to the closing of such Acquisition during the three (3) month period immediately following the closing thereof pursuant to an effective registration statement under the covering such acquiror stock and/or other securities or pursuant to the provisions of Rule 144 under the Act, and (v) the Company provides the Holder with written notice of such Acquisition relating to the foregoing (together with such reasonable information as the Holder may request in connection with such contemplated Acquisition giving rise to such notice), which is received by the Holder not less than ten (10) days prior to the closing of the proposed Acquisition.

Certain Acquisitions. Notwithstanding Section 1.6.2 above, in the event that the acquirer in an Acquisition (other than an acquisition in which the consideration received by the Company's stockholders consists solely of cash and/or cash equivalents) does not agree to assume this Warrant at and as of the closing thereof, this Warrant, to the extent not exercised or converted on or prior to such closing, shall terminate and be of no further force and effect as of immediately following such closing if all of the following conditions are met: (i) the acquirer is subject to the reporting requirements of Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended, (ii) the class of stock or other security of the acquire that would be received by Holder in connection with such Acquisition were Holder to exercise or convert this Warrant on or prior to the closing thereof is listed for trading on a national securities exchange or approved for quotation on an automated inter-dealer quotation system, (iii) the value (determined as of the closing of such Acquisition in accordance with the definitive agreements therefor) of the acquirer stock and/or other securities that would be received by Holder in respect of each Share were Holder to exercise or convert this Warrant on or immediately prior to the closing of such Acquisition is equal to or greater than 3.5 times the then-effective Warrant Price, (iv) Holder would be able to publicly resell all of the acquirer stock and/or other securities that would be received by Holder in such Acquisition were Holder to exercise or convert this Warrant on or prior to the closing of such Acquisition during the three (3) month period immediately following the closing thereof pursuant to an effective registration statement under the covering such acquiror stock and/or other securities or pursuant Subject to the provisions of Rule 144 under this Section and the Actrequirements contained in the definition of Permitted Acquisition, and subject to the other terms and conditions of this Agreement, the Borrower may from time to time after the Amendment Effective Date effect Permitted Acquisitions, provided that (vunless consented to in writing by the Required Lenders): (a) With respect to each Permitted Acquisition financed, in whole or in part, with the Company provides proceeds of Revolving Credit/Term Loans, the Holder conditions set forth in Section 2.2(a) shall be satisfied with written notice respect to all Borrowings comprised of such Revolving Credit/Term Loans; (b) With respect to each Permitted Acquisition, no Default or Event of Default shall have occurred and be continuing at the time of the consummation of such Permitted Acquisition relating to the foregoing or would exist immediately after giving effect thereto; (together with such reasonable information as the Holder may request in connection with such contemplated Acquisition giving rise to such notice), which is received by the Holder not c) Not less than ten five (105) days prior to the closing consummation of any Permitted Acquisition with respect to which the Acquisition Amount is $12,000,000 or more, the Borrower shall have delivered to the Agent (and the Agent shall provide the Lenders) the following items: (i) a reasonably detailed description of the proposed material terms of such Acquisition (including, without limitation, the purchase price and method and structure of payment) and of each Person or business that is the subject of such Permitted Acquisition (each, a "Target") and draft copies of the primary material acquisition documents (it being understood that, with respect to the Satellite Acquisition, the Agent shall be satisfied in its reasonable discretion with the terms of the definitive acquisition documents); (ii) historical financial statements of each Target for the two (2) most recent fiscal years available and for any interim periods since the most recent fiscal year-end for which such interim statements are available; (iii) projected income statements with respect to each Target for the five- year period following the consummation of such Permitted Acquisition, in reasonable detail, together with any appropriate statement of assumptions and pro forma adjustments; and (iv) a certificate executed by the chief financial officer or Vice President-Finance of the Borrower setting forth the Borrower's good faith calculation of the Acquisition Amount (together with any supporting calculations) and further to the effect that, to the best of his knowledge, (A) the consummation of such Permitted Acquisition will not result in a violation of any provision of this Section 5.15, (B) after giving effect to any Borrowings made in connection therewith, the Borrower is in covenant compliance with the financial covenants contained in Sections 6.9 through 6.16 at the most recent calculation period taking into account the Borrowing (such calculations to be attached to the certificate) and (C) the Borrower believes in good faith that such financial covenants will continue to be met for the one-year period following the date of the consummation of such Permitted Acquisition (such calculations to be based on the projections required by subparagraph (iii) above and attached to the certificate). (d) Within forty-five (45) days after the end of each fiscal quarter, the Borrower will deliver to the Agent (i) with respect to any Permitted Acquisition during such fiscal quarter, a copy of the fully executed acquisition agreement (including schedules and exhibits thereto) and (ii) with respect to any Permitted Acquisition during such fiscal quarter with respect to which the Acquisition Amount is less than $12,000,000, the items described in clauses (i), (ii) and (iii) of subsection (c) above, each in form and substance reasonably satisfactory to the Agent. The consummation of each Permitted Acquisition subject to this Section shall be deemed to be a representation and warranty by the Borrower that all conditions thereto have been satisfied, that the same is permitted in accordance with the terms of this Agreement and that the matters certified to by the chief financial officer of the Borrower in the certificate referred to in subsection (c)(iv) above are true and correct as of the date such certificate is given, which representation and warranty shall be deemed to be a representation and warranty for all purposes hereunder, including, without limitation, for purposes of Sections 3.3 and 7.1.

Certain Acquisitions. Notwithstanding (a) Subject to the remaining provisions of this Section 1.6.2 above, 5.13 applicable thereto and the requirements contained in the event that definition of Permitted Acquisition, as the acquirer in an Acquisition (other than an acquisition in which case may be, the consideration received by Borrower may from time to time after the Company's stockholders consists solely of cash and/or cash equivalents) does not agree to assume this Warrant at and as Closing Date effect Permitted Acquisitions or, with the written approval of the closing thereofRequired Lenders, this Warrantother Acquisitions, to the extent not exercised or converted on or prior to such closing, shall terminate and be of no further force and effect as of immediately following such closing if all of the following conditions are met: so long as: (i) with respect to Acquisitions occurring in any one fiscal year (including all of fiscal year 2003), the acquirer is subject total Cash Acquisition Amount payable with respect to all such Acquisitions, whether Permitted Acquisitions or other Acquisitions for which the reporting requirements of Section 13 or Section 15(d) Borrower has obtained the prior approval of the Securities Exchange Act of 1934Required Lenders, as amended, shall not exceed $30,000,000 in the aggregate for any fiscal year; and (ii) with respect to each Acquisition, no Event of Default is in existence at the class time of the consummation of such Acquisition or would exist after giving effect thereto. (b) At the time of each Acquisition involving the creation or acquisition of a Subsidiary, the acquisition of capital stock or other security equity interest of the acquire that would be received by Holder any Person, all capital stock or other interest thereof created or acquired in connection with such Acquisition were Holder shall be directly or indirectly owned by the Borrower, and the Borrower shall have complied with Section 5.12. (c) No Acquisition may be effected unless: (i) The Borrower has provided to exercise or convert this Warrant on or the Bank all financial statements available with respect to the Acquisition target, including without limitation all internally prepared and/or compiled statements and, if available, audited financial statements, together with Borrower's estimate of the Acquisition target's expected earnings and EBITDA contribution to the Borrower following completion of the Acquisition; (ii) calculations are made by the Borrower of compliance with the covenants contained in Sections 6.9 through 6.12, inclusive, for the most recent calculation period ended immediately prior to the closing thereof is listed for trading date of such Acquisition, on a national securities exchange pro forma basis as if the Acquisition had occurred on the first day of such period, and shall show that all such covenants will be complied with, giving effect to the pro forma consolidation of the business acquired, and if such Acquisition involves a Cash Acquisition Amount of $6,000,000.00 or approved for quotation on an automated inter-dealer quotation systemgreater and/or otherwise requires approval of the Required Lenders, such calculations shall be reasonably satisfactory to the Administrative Agent; and (iii) the value (determined as Borrower in good faith believes that the financial covenants contained in such Sections 6.9 through 6.12, inclusive, will continue to be met on a quarterly basis for the one year period following the date of the closing of such Acquisition in accordance with the definitive agreements therefor) consummation of the acquirer stock and/or other securities that would be received by Holder in respect of each Share were Holder to exercise or convert this Warrant Acquisition on or immediately prior to the closing of such Acquisition is equal to or greater than 3.5 times the then-effective Warrant Price, a quarterly basis. (ivd) Holder would be able to publicly resell all of the acquirer stock and/or other securities that would be received by Holder in such Acquisition were Holder to exercise or convert this Warrant on or prior to the closing of such Acquisition during the three (3) month period immediately following the closing thereof pursuant to an effective registration statement under the covering such acquiror stock and/or other securities or pursuant to the provisions of Rule 144 under the Act, and (v) the Company provides the Holder with written notice of such Acquisition relating to the foregoing (together with such reasonable information as the Holder may request in connection with such contemplated Acquisition giving rise to such notice), which is received by the Holder not less No later than ten (10) days Business Days prior to the anticipated closing date of any Acquisition other than a Permitted Acquisition, the Borrower shall deliver to the Administrative Agent and each Lender a copy of the executed letter of intent for such proposed acquisition, the most recent draft of the acquisition agreement and, as soon as available (and in any event prior to the actual day of closing), the fully executed acquisition agreement (including schedules and exhibits thereto). With respect to Permitted Acquisitions, the Borrower will deliver to the Administrative Agent and each Lender a copy of the executed acquisition agreement (including schedules and exhibits thereto) within ten (10) days following the closing of the proposed each such Permitted Acquisition. (e) The consummation of each Acquisition subject to this Section shall be deemed to be a representation and warranty by the Borrower that all conditions thereto have been satisfied, that the same is permitted in accordance with the terms of this Agreement and that the information submitted by the Borrower pursuant to subsection (c) is true and correct as of the date such certificate is given, which representation and warranty shall be deemed to be a representation and warranty for all purposes hereunder, including, without limitation, for purposes of Sections 3.3 and 7.1. (f) Any Acquisition other than a Permitted Acquisition will require written approval of the Required Lenders.

Certain Acquisitions. Notwithstanding (a) In the event of a Competing Acquisition that results in the ITG Group either (x) discontinuing or being unable to continue the use, marketing and distribution of the System in a manner substantially similar to the marketing and distribution of the System prior to the Competing Acquisition or (y) replacing the use of the System with a competing system (each, a “Competing Acquisition Event”), then: (i) The Purchaser shall promptly notify the Selling Stockholders of the Competing Acquisition Event in writing. (ii) To the extent such Competing Acquisition Event has occurred prior to the Expiration Date, the Option has not been exercised and no Change of Control Event shall have occurred, then (1) The License Agreement shall become non-exclusive and shall be terminable by the Company at any time upon six months notice pursuant to Section 1.6.2 above2 of the License Agreement, (2) the Purchaser and the Company shall give joint instructions to the source code escrow agent to terminate the Source Code Escrow Agreement, (3) the Option shall terminate and the Expiration Date shall be the date of the Competing Acquisition Event, and (4) the Purchaser shall pay a purchase price adjustment to the Company towards the purchase of Purchased Shares equal to the higher of (x) $1,000,000 and (y) 25% of the aggregate Gross Revenues for the period beginning on the date hereof and ending on the date of the Competing Acquisition Event; provided that, if Gross Revenues have not exceeded $1,250,000 within the first six calendar months, or $2,500,000 within the first nine calendar months, from the Closing Date, as applicable, then no such purchase price adjustment shall be paid. (B) The Company shall have an option, for six months from the date of the Competing Acquisition Event, to repurchase the Purchased Shares from the Purchaser for $750,000. (iii) To the extent such Competing Acquisition Event has occurred prior to the fourth Additional Payment Calculation Date, the Option has been exercised and no Change of Control Event shall have occurred, then (A) No further Additional Option Payment Amounts shall be paid (including any Additional Option Payment Amounts accrued but unpaid) unless the sum of such unpaid amounts calculated in accordance with Section 2.5 is higher than the amounts paid pursuant to (B) below in which case the difference between the two shall be paid to the Selling Stockholders on the Final Payment Date. (B) The Purchaser shall pay to each of the Selling Stockholders their pro rata share based on the number of Option Shares sold by each Selling Stockholder: (1) if the Option Exercise Price was $4 million or more, but less than $6 million, $12 million, (2) if the Option Exercise Price was $6 million or more, but less than $9 million, $16 million, and (3) if the Option Exercise Price was $9 million or more, $18 million. In each case less (x) the Option Exercise Price and (y) any Additional Option Payment Amounts actually paid. (C) Subject to the terms of the Escrow Agreement, the Escrow Fund shall be released by the Escrow Agent to the Selling Stockholders. (b) In the event that the acquirer in an ITG Group enters into negotiations (but not a binding contract) for a Competing Acquisition (other than an acquisition in which the consideration received by the Company's stockholders consists solely of cash and/or cash equivalents) does not agree to assume this Warrant at and as of the closing thereof, this Warrant, to the extent not exercised or converted on or prior to such closing, shall terminate and be of no further force and effect as of immediately following such closing if all of the following conditions are met: (i) the acquirer is subject to the reporting requirements of Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended, (ii) the class of stock or other security of the acquire that would be received by Holder in connection with such Acquisition were Holder to exercise or convert this Warrant on or prior to the closing thereof is listed for trading on a national securities exchange or approved for quotation on an automated interExpiration Date, the Option has not been exercised and no Change of Control Event shall have occurred, then the Purchaser shall promptly notify the Company of such fact in writing and the License Agreement shall become non-dealer quotation system, (iii) the value (determined as exclusive pursuant to Section 2 of the closing of such Acquisition in accordance with the definitive agreements therefor) of the acquirer stock and/or other securities that would be received by Holder in respect of each Share were Holder to exercise or convert this Warrant on or immediately prior to the closing of such Acquisition is equal to or greater than 3.5 times the then-effective Warrant Price, (iv) Holder would be able to publicly resell all of the acquirer stock and/or other securities that would be received by Holder in such Acquisition were Holder to exercise or convert this Warrant on or prior to the closing of such Acquisition during the three (3) month period immediately following the closing thereof pursuant to an effective registration statement under the covering such acquiror stock and/or other securities or pursuant to the provisions of Rule 144 under the Act, and (v) the Company provides the Holder with written notice of such Acquisition relating to the foregoing (together with such reasonable information as the Holder may request in connection with such contemplated Acquisition giving rise to such notice), which is received by the Holder not less than ten (10) days prior to the closing of the proposed AcquisitionLicense Agreement.

Certain Acquisitions. Notwithstanding Section 1.6.2 above, in the event that the acquirer in an Acquisition (other than an acquisition in which the consideration received by the Company's stockholders consists solely of cash and/or cash equivalentsa) does not agree to assume this Warrant at and as of the closing thereof, this Warrant, to the extent not exercised or converted on or prior to such closing, shall terminate and be of no further force and effect as of immediately following such closing if all of the following conditions are met: (i) the acquirer is subject to the reporting requirements of Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended, (ii) the class of stock or other security of the acquire that would be received by Holder in connection with such Acquisition were Holder to exercise or convert this Warrant on or prior to the closing thereof is listed for trading on a national securities exchange or approved for quotation on an automated inter-dealer quotation system, (iii) the value (determined as of the closing of such Acquisition in accordance with the definitive agreements therefor) of the acquirer stock and/or other securities that would be received by Holder in respect of each Share were Holder to exercise or convert this Warrant on or immediately prior to the closing of such Acquisition is equal to or greater than 3.5 times the then-effective Warrant Price, (iv) Holder would be able to publicly resell all of the acquirer stock and/or other securities that would be received by Holder in such Acquisition were Holder to exercise or convert this Warrant on or prior to the closing of such Acquisition during the three (3) month period immediately following the closing thereof pursuant to an effective registration statement under the covering such acquiror stock and/or other securities or pursuant to the provisions of Rule 144 under the Act, and (v) the Company provides the Holder with written notice of such Acquisition relating to the foregoing (together with such reasonable information as the Holder may request in connection with such contemplated Acquisition giving rise to such notice), which is received by the Holder not Not less than ten (10) days prior to the consummation of any Acquisition for an Acquisition Amount greater than $5,000,000, the Borrower shall deliver to the Agent and each Lender, in form and substance reasonably satisfactory to the Agent, an officer's certificate executed by a Chief Executive Officer or the Chief Financial Officer of the Borrower, accompanied by detailed calculations, that (i) the consummation of such Acquisition will not result in a violation of any provision of this Agreement and no Default or Event of Default exists or will exist as a result of such Acquisition, and (ii) confirming compliance with the covenants contained in SECTIONS 6.9 through 6.14, inclusive, for the most recent calculation period ended immediately prior to the date of such Acquisition, on a pro forma basis as if such Acquisition had occurred on the first day of such period. (b) Within ten (10) days after the closing of each Acquisition for an Acquisition Amount in excess of $5,000,000, the proposed Borrower will deliver to the Agent and each Lender (i) a reasonably detailed description of the nature and line of business, and the material terms of such Acquisition (including, without limitation, the purchase price and method and structure of payment) of each Person or business that is the subject of such Acquisition (each, a "Target"); (ii) to the extent available, historical financial statements of each Target for the two (2) most recent fiscal years available and for any interim periods since the most recent fiscal year-end for which such interim statements are available; and (iii) projected income statements with respect to each Target for the two-year period following the consummation of such Acquisition, together with any appropriate statement of assumptions and pro forma adjustments. (c) Within ten (10) days after the closing of each Acquisition, the Borrower will deliver to the Agent and each Lender a copy of the fully executed acquisition agreement (including schedules and exhibits thereto). (d) Within thirty (30) days after the closing of a Acquisition for an Acquisition Amount less than $5,000,000, but greater than $2,000,000, the Borrower shall deliver to the Lenders the information listed in subsection B(I) above. (e) Acquisitions involving Borrowings may be effected by the Borrower and its Restricted Subsidiaries in compliance with Section 2.2(a)(ii) hereof. (f) The consummation of each Acquisition subject to this Section shall be deemed to be a representation and warranty by the Borrower that all conditions thereto have been satisfied, that no default or Event of Default exists or will exist as a result of such Acquisition, that any applicable conditions of SECTION 5.12 have been satisfied, that the same is permitted in accordance with the terms of this Agreement and that the information submitted by the Borrower pursuant to subsection (A) above, if any, is true and correct as of the date such certificate is given, which representation and warranty shall be deemed to be a representation and warranty for all purposes hereunder, including, without limitation, for purposes of SECTIONS 3.3 and 7.

Certain Acquisitions. Notwithstanding Section 1.6.2 above, in the event that the acquirer in an Acquisition (other than an acquisition in which the consideration received by the Company's stockholders consists solely of cash and/or cash equivalents) does not agree to assume this Warrant at and as of the closing thereof, this Warrant, to the extent not exercised or converted on or prior to such closing, shall terminate and be of no further force and effect as of immediately following such closing if all of the following conditions are met: (i) the acquirer is subject to the reporting requirements of Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended, (ii) the class of stock or other security of the acquire that would be received by Holder in connection with such Acquisition were Holder to exercise or convert this Warrant on or prior to the closing thereof is listed for trading on a national securities exchange or approved for quotation on an automated inter-dealer quotation system, (iii) the value (determined as of the closing of such Acquisition in accordance with the definitive agreements therefor) of the acquirer stock and/or other securities that would be received by Holder in respect of each Share were Holder to exercise or convert this Warrant on or immediately prior to the closing of such Acquisition is equal to or greater than 3.5 times the then-effective Warrant Price, (iv) Holder would be able to publicly resell all of the acquirer stock and/or other securities that would be received by Holder in such Acquisition were Holder to exercise or convert this Warrant on or prior to the closing of such Acquisition during the three (3) month period immediately following the closing thereof pursuant to an effective registration statement under the covering such acquiror stock and/or other securities or pursuant Subject to the provisions of Rule 144 under this Section and the Actrequirements contained in the definition of Permitted Acquisition, and subject to the other terms and conditions of this Agreement, the Borrower may from time to time after the Closing Date effect Permitted Acquisitions, provided that (vunless consented to in writing by the Required Lenders): (a) With respect to each Permitted Acquisition financed, in whole or in part, with the Company provides proceeds of Revolving Credit/Term Loans, the Holder conditions set forth in Section 2.2(a) shall be satisfied with written notice respect to all Borrowings comprised of such Revolving Credit/Term Loans; (b) With respect to each Permitted Acquisition, no Default or Event of Default shall have occurred and be continuing at the time of the consummation of such Permitted Acquisition relating to the foregoing or would exist immediately after giving effect thereto; (together with such reasonable information as the Holder may request in connection with such contemplated Acquisition giving rise to such notice), which is received by the Holder not c) Not less than ten five (105) days prior to the closing consummation of any Permitted Acquisition with respect to which the Acquisition Amount is $12,000,000 or more, the Borrower shall have delivered to the Agent (and the Agent shall provide the Lenders) the following items: (i) a reasonably detailed description of the proposed material terms of such Acquisition (including, without limitation, the purchase price and method and structure of payment) and of each Person or business that is the subject of such Permitted Acquisition (each, a "Target") and draft copies of the primary material acquisition documents; (ii) historical financial statements of each Target for the two (2) most recent fiscal years available and for any interim periods since the most recent fiscal year-end for which such interim statements are available; (iii) projected income statements with respect to each Target for the five- year period following the consummation of such Permitted Acquisition, in reasonable detail, together with any appropriate statement of assumptions and pro forma adjustments; and (iv) a certificate executed by the chief financial officer or Vice President-Finance of the Borrower setting forth the Borrower's good faith calculation of the Acquisition Amount (together with any supporting calculations) and further to the effect that, to the best of his knowledge, (A) the consummation of such Permitted Acquisition will not result in a violation of any provision of this Section 5.15, (B) after giving effect to any Borrowings made in connection therewith, the Borrower is in covenant compliance with the financial covenants contained in Sections 6.9 through 6.16 at the most recent calculation period taking into account the Borrowing (such calculations to be attached to the certificate) and (C) the Borrower believes in good faith that such financial covenants will continue to be met for the one-year period following the date of the consummation of such Permitted Acquisition (such calculations to be based on the projections required by subparagraph (iii) above and attached to the certificate). (d) Within forty-five (45) days after the end of each fiscal quarter, the Borrower will deliver to the Agent (i) with respect to any Permitted Acquisition during such fiscal quarter, a copy of the fully executed acquisition agreement (including schedules and exhibits thereto) and (ii) with respect to any Permitted Acquisition during such fiscal quarter with respect to which the Acquisition Amount is less than $12,000,000, the items described in clauses (i), (ii) and (iii) of subsection (C) above, each in form and substance reasonably satisfactory to the Agent. The consummation of each Permitted Acquisition subject to this Section shall be deemed to be a representation and warranty by the Borrower that all conditions thereto have been satisfied, that the same is permitted in accordance with the terms of this Agreement and that the matters certified to by the chief financial officer of the Borrower in the certificate referred to in subsection (c)(iv) above are true and correct as of the date such certificate is given, which representation and warranty shall be deemed to be a representation and warranty for all purposes hereunder, including, without limitation, for purposes of Sections 3.3 and 7.1.

Certain Acquisitions. Notwithstanding Section 1.6.2 above, in the event that the acquirer in an Acquisition (other than an acquisition in which the consideration received by the Company's stockholders consists solely of cash and/or cash equivalents) does not agree to assume this Warrant at and as of the closing thereof, this Warrant, to the extent not exercised or converted on or prior to such closing, shall terminate and be of no further force and effect as of immediately following such closing if all of the following conditions are met: (i) the acquirer is subject to the reporting requirements of Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended, (ii) the class of stock or other security of the acquire that would be received by Holder in connection with such Acquisition were Holder to exercise or convert this Warrant on or prior to the closing thereof is listed for trading on a national securities exchange or approved for quotation on an automated inter-dealer quotation system, (iii) the value (determined as of the closing of such Acquisition in accordance with the definitive agreements therefor) of the acquirer stock and/or other securities that would be received by Holder in respect of each Share were Holder to exercise or convert this Warrant on or immediately prior to the closing of such Acquisition is equal to or greater than 3.5 times the then-effective Warrant Price, (iv) Holder would be able to publicly resell all of the acquirer stock and/or other securities that would be received by Holder in such Acquisition were Holder to exercise or convert this Warrant on or prior to the closing of such Acquisition during the three (3) month period immediately following the closing thereof pursuant to an effective registration statement under the covering such acquiror acquirer stock and/or other securities or pursuant to the provisions of Rule 144 under the Act, and (v) the Company provides the Holder with written notice of such Acquisition relating to the foregoing (together with such reasonable information as the Holder may request in connection with such contemplated Acquisition giving rise to such notice), which is received by the Holder not less than ten (10) days prior to the closing of the proposed Acquisition.

Certain Acquisitions. Notwithstanding Section 1.6.2 above, in the event that the acquirer in an Acquisition (other than an acquisition in which the consideration received by the Company's stockholders consists solely of cash and/or cash equivalents) does not agree to assume this Warrant at and as of the closing thereof, this Warrant, to the extent not exercised or converted on or prior to such closing, shall terminate and be of no further force and effect as of immediately following such closing if all of the following conditions are met: (i) the acquirer is subject to the reporting requirements of Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended, (ii) the class of stock or other security of the acquire that would be received by Holder in connection with such Acquisition were Holder to exercise or convert this Warrant on or prior to the closing thereof is listed for trading on a national securities exchange or approved for quotation on an automated inter-dealer quotation system, (iii) the value (determined as of the closing of such Acquisition in accordance with the definitive agreements therefor) of the acquirer stock and/or other securities that would be received by Holder in respect of each Share were Holder to exercise or convert this Warrant on or immediately prior to the closing of such Acquisition is equal to or greater than 3.5 times the then-effective Warrant Price, (iv) Holder would be able to publicly resell all of the acquirer stock and/or other securities that would be received by Holder in such Acquisition were Holder to exercise or convert this this. Warrant on or prior to the closing of such Acquisition during the three (3) month period immediately following the closing thereof pursuant to an effective registration statement under the covering such acquiror stock and/or other securities or pursuant to the provisions of Rule 144 under the Act, and (v) the Company provides the Holder with written notice of such Acquisition relating to the foregoing (together with such reasonable information as the Holder may request in connection with such contemplated Acquisition giving rise to such notice), which is received by the Holder not less than ten (10) days prior to the closing of the proposed Acquisition.