Common use of Certain Corporate Transactions Clause in Contracts

Certain Corporate Transactions. In the event of any Corporate Transaction (as such term is defined below), unless the Option is expressly assumed, or an equivalent option is substituted, by the corporation surviving such Corporate Transaction or by a parent or subsidiary of such surviving corporation, the Option will (i) become exercisable in full immediately prior to the consummation of such Corporate Transaction and (ii) terminate upon the consummation of such Corporate Transaction to the extent not exercised prior thereto. Any shares of Common Stock issued pursuant to the Option shall, except as otherwise provided in the applicable Restricted Stock Purchase Agreement, become fully vested upon the consummation of a Corporate Transaction. As used in this Section, “Corporate Transaction” means any of the following stockholder approved transactions to which the Company is a party: (i) a merger or consolidation in which the Company is not the surviving entity; (ii) the sale, transfer or other disposition of all or substantially all of the assets of the Company (including the capital stock of the Company’s subsidiary corporations) in connection with the complete liquidation or dissolution of the Company; (iii) any merger in which the Company is the surviving entity but in which the shares of the Company’s capital stock outstanding immediately prior to such transaction are converted into the right to receive cash, debt securities and/or equity securities of another corporation or (iv) the sale by the holders of more than 90% of the outstanding shares of the Company’s capital stock in a single transaction or a series of related transactions; provided, however, that a transaction shall not constitute a “Corporate Transaction” if: (i) its sole purpose is to change the state of the Company’s incorporation; (ii) its sole purpose is to create a holding company that will be owned in substantially the same proportions by the persons who held the Company’s securities immediately before such transaction; or (iii) it constitutes the Company’s initial public offering of its securities. The Company shall provide written notice to Optionee at least ten (10) days prior to the consummation of any Corporate Transaction, which notice shall state whether or not the outstanding Options will be expressly assumed, or equivalent options will be substituted for the outstanding Options, by the corporation surviving such Corporate Transaction or by a parent or subsidiary of such surviving corporation, and if such is not the case, stating that the Option will become exercisable in full immediately prior to the consummation of such Corporate Transaction and will terminate upon the consummation of such Corporate Transaction to the extent not exercised prior thereto. The Optionee shall have the right to make the election to exercise such Option immediately prior to the consummation of such Corporate Transaction contingent upon the successful consummation of such Corporate Transaction, such that if such Corporate Transaction is not consummated, the Option shall not be deemed exercised.

Certain Corporate Transactions. Nothing in this Agreement shall in any way prohibit the Borrower from merging with or consolidating into another corporation, or from selling or transferring all or substantially all of its assets, or from distributing all or substantially all of its assets to its shareholders in liquidation, or from dissolving and terminating its corporate existence. In the event of any Corporate Transaction (as such term is defined below), unless the Option is expressly assumedBorrower merges or consolidates with another corporation, or an equivalent option is substituted, by the corporation surviving such Corporate Transaction or by a parent or subsidiary of such surviving corporation, the Option will (i) become exercisable in full immediately prior to the consummation of such Corporate Transaction and (ii) terminate upon the consummation of such Corporate Transaction to the extent not exercised prior thereto. Any shares of Common Stock issued pursuant to the Option shall, except as otherwise provided in the applicable Restricted Stock Purchase Agreement, become fully vested upon the consummation of a Corporate Transaction. As used in this Section, “Corporate Transaction” means any of the following stockholder approved transactions to which the Company is a party: (i) a merger or consolidation in which the Company is not the surviving entity; (ii) the sale, transfer or other disposition of all or substantially all of the assets of the Company (including the Borrower's capital stock or assets are acquired by or are subject to a tender offer of another corporation, entity or person (collectively, together with each event described in the Company’s subsidiary corporations) immediately preceding sentence, "Control Events"), and the surviving or acquiring corporation, person or entity issues shares of stock or other consideration to the Borrower's stockholders in connection with the complete liquidation merger, consolidation or dissolution acquisition, the surviving or acquiring corporation shall adopt this Agreement (including, without limitation the anti-dilution provisions of Section 7.08 hereof) and, upon the exercise of the Company; Warrants, the Lender shall, at no additional cost (iii) any merger other than the Exercise Price), be entitled to receive, in lieu of the number of shares of Common Stock to which such Warrants are then exercisable, the number and class of shares of stock or other consideration to which the Company is Lender would have been entitled pursuant to the surviving entity but in terms of the merger, consolidation or acquisition if immediately prior thereto the Lender had been the Lender of record of the number of shares of Common Stock equal to the number of shares of Common Stock for which the shares of the Company’s capital stock outstanding immediately prior to such transaction are converted into the right to receive cash, debt securities and/or equity securities of another corporation or (iv) the sale by the holders of more than 90% of the outstanding shares of the Company’s capital stock in a single transaction or a series of related transactions; provided, however, that a transaction Warrants shall not constitute a “Corporate Transaction” if: (i) its sole purpose is to change the state of the Company’s incorporation; (ii) its sole purpose is to create a holding company that will then be owned in substantially the same proportions by the persons who held the Company’s securities immediately before such transaction; or (iii) it constitutes the Company’s initial public offering of its securitiesexercisable. The Company shall provide written notice to Optionee at least ten (10) days prior Anything to the consummation contrary appearing herein or in any Warrant notwithstanding, each Warrant shall immediately become exercisable upon the occurrence of any Corporate Transaction, which notice shall state whether or not the outstanding Options will be expressly assumed, or equivalent options will be substituted for the outstanding Options, by the corporation surviving such Corporate Transaction or by a parent or subsidiary of such surviving corporation, and if such is not the case, stating that the Option will become exercisable in full immediately prior to the consummation of such Corporate Transaction and will terminate upon the consummation of such Corporate Transaction to the extent not exercised prior thereto. The Optionee shall have the right to make the election to exercise such Option immediately prior to the consummation of such Corporate Transaction contingent upon the successful consummation of such Corporate Transaction, such that if such Corporate Transaction is not consummated, the Option shall not be deemed exercisedControl Event. ARTICLE VIII MISCELLANEOUS SECTION

Certain Corporate Transactions. In (a) If the event of any Corporate Transaction (as such term is defined below), unless the Option is expressly assumed, or an equivalent option is substituted, by the corporation surviving such Corporate Transaction or by a parent or subsidiary of such surviving corporation, the Option will Company elects to: (i) become exercisable distribute to all holders of Common Stock rights, options or warrants entitling them to purchase, for a period expiring within 60 days of the declaration date for such distribution, shares of Common Stock at less than the Closing Price of the Common Stock on the Trading Day immediately preceding the declaration date for such distribution; or (ii) distribute to all holders of Common Stock assets, debt securities or rights, options or warrants to purchase securities of the Company, which distribution has a per share fair market value (determined in full the manner specified in Section 12.9(f)) exceeding 10% of the Closing Price of the Common Stock on the Trading Day immediately preceding the declaration date for such distribution; then in the case of the foregoing clauses (i) and (ii), the Company shall notify the Holders at least 20 days prior to the ex-dividend date for such distribution. Once the Company has given such notice, even if the Securities are not otherwise convertible at such time, Holders may surrender their Securities for conversion at any time thereafter until the earlier of the close of business on the Business Day immediately prior to the consummation of ex-dividend date or the Company's announcement that such Corporate Transaction and (ii) terminate upon the consummation of such Corporate Transaction distribution will not take place, subject to the extent not exercised prior thereto. Any shares of Common Stock issued pursuant to the Option shall, except as otherwise provided in the applicable Restricted Stock Purchase Agreement, become fully vested upon the consummation of a Corporate Transaction. As used in this Section, “Corporate Transaction” means any of the following stockholder approved transactions to which the Company is a party: (i) a merger or consolidation in which the Company is not the surviving entity; (ii) the sale, transfer or other disposition of all or substantially all of the assets of the Company (including the capital stock of the Company’s subsidiary corporations) in connection with the complete liquidation or dissolution of the Company; (iii) any merger in which the Company is the surviving entity but in which the shares of the Company’s capital stock outstanding immediately prior to such transaction are converted into the right to receive cash, debt securities and/or equity securities of another corporation or (iv) the sale limitations imposed by the holders last paragraph of more than 90% of the outstanding shares of the Company’s capital stock in a single transaction or a series of related transactionsSection 12.1; provided, however, that a transaction Holder may not exercise this right to convert if the Holder is otherwise entitled to participate in the distribution without conversion. As used herein, the term "ex-dividend date" or "ex-date" when used with respect to any issuance or distribution, shall mean the first date upon which a sale of shares of Common Stock does not constitute automatically transfer the right to receive the relevant dividend or distribution from the seller of such Common Stock to its buyer. (b) If the Company is party to a “Corporate Transaction” if: (i) its sole purpose is consolidation, merger or binding share exchange pursuant to change the state which all or substantially all of the Company’s incorporation; (ii) its sole purpose Common Stock would be converted into cash, securities or other property, even if the Securities are not otherwise convertible at the time, Holders may surrender their Securities for conversion at any time from and after the date that is to create a holding company that will be owned in substantially the same proportions by the persons who held the Company’s securities immediately before such transaction; or (iii) it constitutes the Company’s initial public offering of its securities. The Company shall provide written notice to Optionee at least ten (10) 15 days prior to the consummation anticipated effective date of any Corporate Transactionthe transaction until 15 days after the actual date of the transaction. If such consolidation, which notice shall state whether merger or not the outstanding Options will be expressly assumedbinding share exchange constitutes a Fundamental Change, or equivalent options will be substituted for the outstanding Options, by the corporation surviving such Corporate Transaction or by a parent or subsidiary of such surviving corporation, and if such is not the case, stating that the Option will become exercisable in full immediately prior to the consummation of such Corporate Transaction and will terminate upon the consummation of such Corporate Transaction to the extent not exercised prior thereto. The Optionee shall have the right to make the election to exercise such Option immediately prior convert Securities contemplated by this Section 12.2(b) will not be subject to the consummation limitations imposed by the last paragraph of such Corporate Transaction contingent upon Section 12.1. (c) If a Fundamental Change occurs, Holders may surrender their Securities for conversion during the successful consummation period described in paragraph (b) above. However, a conversion of such Corporate Transaction, such that a Security will only be considered "in connection with" a Fundamental Change if such Corporate Transaction the Security is not consummated, surrendered during the Option shall not period described in Section 12.5(e) and the provisions of Section 12.5(d) and Section 12.5(e) are complied with. Section 12.10 provides for an adjustment to the Capped Anti-Dilution Multiplier only if a Security is deemed to be deemed exercisedconverted "in connection with" a Change in Control.

Certain Corporate Transactions. In the event of any Corporate Transaction (as such term is defined below)a) If a corporate transaction occurs (as, unless the Option is expressly assumedfor example, or an equivalent option is substituteda merger, by the corporation surviving such Corporate Transaction or by a parent or subsidiary of such surviving corporationconsolidation, the Option will (i) become exercisable in full immediately prior to the consummation of such Corporate Transaction and (ii) terminate upon the consummation of such Corporate Transaction to the extent not exercised prior thereto. Any shares of Common Stock issued pursuant to the Option shall, except as otherwise provided in the applicable Restricted Stock Purchase Agreement, become fully vested upon the consummation of a Corporate Transaction. As used in this Section, “Corporate Transaction” means any of the following stockholder approved transactions to which the Company is a party: (i) a merger or consolidation in which the Company is not the surviving entity; (ii) the sale, transfer or other disposition sale of all or substantially all of the assets of the Company (including the capital stock of the Company’s subsidiary corporations) in connection with the complete liquidation 's property or dissolution of the Company; (iii) any merger in which the Company is the surviving entity but in which the shares of the Company’s capital stock outstanding immediately prior to such transaction are converted into the right to receive cash, debt securities and/or equity securities of another corporation or (iv) the sale by the holders of more than 9050% of the outstanding shares of the Company’s capital stock in a single transaction 's stock, separation, reorganization, or a series of related transactionsliquidation), each outstanding Award shall be assumed by the surviving or successor entity; provided, however, that if a corporate transaction is proposed, the Committee may terminate all or a portion of any outstanding Award, effective upon the closing of the corporate transaction, if it determines that such termination is in the best interests of the Company. If the Committee decides to terminate outstanding Options, the Committee shall give each Participant holding an Option to be terminated not less than seven days' notice before any such termination, and any Option that is to be so terminated may be exercised (if and only to the extent that it is then exercisable) up to, and including the date immediately preceding such termination. Further, the Committee, in its discretion, may (i) accelerate, in whole or in part, the date on which any or all Options, vest and/or (ii) remove the restrictions from the outstanding Restricted Stock. The Committee also may, in its discretion, change the terms of any outstanding Award to reflect the corporate transaction, provided that, in the case of ISOs, such change would not constitute a “Corporate Transaction” if: (i"modification" under section 424(h) its sole purpose is to change the state of the Company’s incorporation; Code and in the case of NQSOs, such change does not constitute a "modification" under Proposed Treas. Reg. ss.1.409A-1(b)(5)(v)(B), unless the Participant consents to the change. (iib) its sole purpose is With respect to create an outstanding Award held by a holding company that Participant who, following the corporate transaction, will be owned employed by or otherwise providing services to an entity which is a surviving or acquiring entity in such transaction or a Related Corporation of such an entity, the Committee may, in lieu of the action described in subsection (a) above, arrange to have such surviving or acquiring entity or Related Corporation grant to the Participant a replacement award which, in the judgment of the Committee, is substantially equivalent to the same proportions by Award, provided that in the persons who held case of a replacement option, the Company’s securities requirements of Treas. Reg. ss.1.424-1 are met with respect to ISOs and would be met if NQSOs were ISOs. For this purpose, the requirements of Treas. Reg. ss. 1.424-l(a)(5)(iii) are deemed met if the ratio of the exercise price to the Fair Market Value of the shares subject to the replacement option immediately after the transaction is not greater than the ratio of the exercise price to the Fair Market Value of the Shares immediately before such the transaction; or (iii) it constitutes the Company’s initial public offering of its securities. The Company shall provide written notice to Optionee at least ten (10) days prior to the consummation of any Corporate Transaction, which notice shall state whether or not the outstanding Options will be expressly assumed, or equivalent options will be substituted for the outstanding Options, by the corporation surviving such Corporate Transaction or by a parent or subsidiary of such surviving corporation, and if such is not the case, stating that the Option will become exercisable in full immediately prior to the consummation of such Corporate Transaction and will terminate upon the consummation of such Corporate Transaction to the extent not exercised prior thereto. The Optionee shall have the right to make the election to exercise such Option immediately prior to the consummation of such Corporate Transaction contingent upon the successful consummation of such Corporate Transaction, such that if such Corporate Transaction is not consummated, the Option shall not be deemed exercised.