Common use of Common Stock Equivalents Clause in Contracts

Common Stock Equivalents. i. Subject to Section 2(f), if the Company shall, after the Issuance Date, issue any security or evidence of indebtedness which is convertible into or exchangeable for Common Stock ("Convertible Security"), or any warrant, option or other right to subscribe for or purchase Common Stock or any Convertible Security, other than pursuant to Employee Benefit Plans (together with Convertible Securities, "Common Stock Equivalent"), then the Exercise Price upon each such issuance shall be adjusted as provided in Section 2(d) on the basis that (i) the maximum number of additional shares of Common Stock issuable pursuant to all such Common Stock Equivalents shall be deemed to have been issued as of the date of issuance of such Common Stock Equivalent; and (ii) the aggregate consideration for such maximum number of additional shares of Common Stock shall be deemed to be the minimum consideration received and receivable by the Company for the issuance of such additional shares of Common Stock pursuant to such Common Stock Equivalent. ii. Notwithstanding the foregoing, no adjustment shall be made pursuant to this Section 2(e) unless the consideration received and receivable by the Company per share of Common Stock for the issuance of such additional shares of Common Stock pursuant to such Common Stock Equivalent is less than the Market Price. No adjustment of the Exercise Price shall be made under this Section 2(e) upon the issuance of any Convertible Security which is issued pursuant to the exercise of any warrants or other subscription or purchase rights therefor, if any adjustment shall previously have been made in the Exercise Price then in effect upon the issuance of such warrants or other rights pursuant to this Section 2(e). No adjustment shall be made under this Section 2(e) if an adjustment is to be made under Section 2(f). No adjustment shall be made as a result of adjustment in the exercise or conversion price of Common Stock Equivalents, if those adjustments occur by the terms of such Common Stock Equivalents.

Common Stock Equivalents. i. Subject to Section 2(f), if If the Company shall, after the Issuance Closing Date, issue any security or evidence of indebtedness which is convertible into or exchangeable for Common Stock ("Convertible Security"), or any warrant, option or other right to subscribe for or purchase Common Stock or any Convertible Security, other than pursuant to Employee Benefit Plans (together with Convertible Securities, "Common Stock Equivalent"), or if, after any such issuance, the price per share for which additional shares of Common Stock may be issuable thereunder is amended, then the Exercise Price upon each such issuance or amendment shall be adjusted as provided in paragraph (c) of this Section 2(d) 3 on the basis that (i) the maximum number of additional shares of Common Stock issuable pursuant to all such Common Stock Equivalents shall be deemed to have been issued as of the earlier of (a) the date on which the Company shall enter into a firm contract for the issuance of such Common Stock Equivalent, or (b) the date of actual issuance of such Common Stock Equivalent; and (ii) the aggregate consideration for such maximum number of additional shares of Common Stock shall be deemed to be the minimum consideration received and receivable by the Company for the issuance of such additional shares of Common Stock pursuant to such Common Stock Equivalent. ii. Notwithstanding the foregoing; provided, however, that no adjustment shall be made pursuant to paragraph (d) of this Section 2(e) 3 unless the consideration received and receivable by the Company per share of Common Stock for the issuance of such additional shares of Common Stock pursuant to such Common Stock Equivalent is less than the Market Price. No adjustment of the Exercise Price shall be made under paragraph (d) of this Section 2(e) 3 upon the issuance of any Convertible Security which is issued pursuant to the exercise of any warrants or other subscription or purchase rights therefor, if any adjustment shall previously have been made in the Exercise Price then in effect upon the issuance of such warrants or other rights pursuant to paragraph (d) of this Section 2(e). No adjustment shall be made under this Section 2(e) if an adjustment is to be made under Section 2(f). No adjustment shall be made as a result of adjustment in the exercise or conversion price of Common Stock Equivalents, if those adjustments occur by the terms of such Common Stock Equivalents3.

Common Stock Equivalents. i. Subject to Section 2(f), if If at any time after the date of this Agreement the Company shall, after the Issuance Date, shall issue any security or evidence of indebtedness which is convertible into or exchangeable for Common Stock Equivalents ("Convertible Security"), or any warrant, option or other right than Permitted Issuances) entitling the holders thereof to subscribe for or to purchase shares of Common Stock at a price per share, or any Convertible Security, other than pursuant to Employee Benefit Plans (together with Convertible Securities, "having a conversion price per share of Common Stock Equivalent"(if a security is convertible into Common Stock), then less than the lesser of the Average Market Price per share of Common Stock or, if the Exercise Price upon each has been adjusted pursuant to Section 6(c), less than 91% of such issuance adjusted Exercise Price, the Exercise Price shall be adjusted as provided decreased to an amount determined by multiplying such Exercise Price in Section 2(deffect immediately prior to such record date by a fraction, the numerator of which is the sum of (x) the total number of shares of Common Stock outstanding on the basis that issuance date of such Common Stock Equivalent and (iy) the maximum number of shares of Common Stock which the aggregate subscription or purchase price for such Common Stock Equivalents (plus the aggregate amount of additional consideration, if any, payable upon the exercise or conversion thereof) would purchase at the greater of such Average Market Price or, if the Exercise Price has been adjusted pursuant to Section 6(c), 91% of such Adjusted Exercise Price, as the case may be, and the denominator of which shall be the sum of (a) the number of shares of Common Stock outstanding date of issuance of such Common Stock Equivalents and (b) the number of additional shares of Common Stock issuable pursuant to all be offered for subscription or purchase (or into which the convertible securities to be so offered are initially convertible). In the event such subscription or purchase price is paid, in whole or in part, with consideration other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive and described in a statement filed with the Warrant Agent. The number of shares purchasable upon the exercise of each Warrant outstanding on the issuance date of such Common Stock Equivalents shall be deemed increased to have been issued as a number of shares equal to (i) the number of shares purchasable on such date of issuance of such Common Stock Equivalent; and multiplied by the Exercise Price in effect immediately prior to the adjustment required by the preceding sentence, divided by (ii) the aggregate consideration for adjusted Exercise Price computed pursuant to the preceding sentence. Such adjustment shall be made successively whenever Common Stock Equivalents are issued and, in the event that such maximum rights or warrants are not issued, the Exercise Price and the number of additional shares of Common Stock purchasable upon exercise of the Warrants shall be deemed to be the minimum consideration received and receivable by the Company for the issuance of such additional shares of Common Stock pursuant to such Common Stock Equivalent. ii. Notwithstanding the foregoing, no adjustment shall be made pursuant to this Section 2(e) unless the consideration received and receivable by the Company per share of Common Stock for the issuance of such additional shares of Common Stock pursuant to such Common Stock Equivalent is less than the Market Price. No adjustment of the Exercise Price shall be made under this Section 2(e) upon the issuance of any Convertible Security which is issued pursuant readjusted to the exercise price and the number of any warrants or other subscription or purchase rights therefor, if any adjustment shall previously have been made in the Exercise Price then shares which were in effect upon the prior to issuance of such warrants or other rights pursuant to this Section 2(e). No adjustment shall be made under this Section 2(e) if an adjustment is to be made under Section 2(f). No adjustment shall be made as a result of adjustment in the exercise or conversion price of Common Stock Equivalents, if those adjustments occur by the terms of such Common Stock Equivalents.

Common Stock Equivalents. i. Subject 5.4.2.1 For the purposes of this Section 5.4, the issuance of any warrants, options, subscription or purchase rights with respect to Section 2(f), if shares of Common Stock and the Company shall, after the Issuance Date, issue issuance of any security or evidence of indebtedness which is securities convertible into or exchangeable for Common Stock ("Convertible Security"), or any warrant, option or other right to subscribe for or purchase Common Stock or any Convertible Security, other than pursuant to Employee Benefit Plans (together with Convertible Securities, "Common Stock Equivalent"), then the Exercise Price upon each such issuance shall be adjusted as provided in Section 2(d) on the basis that (i) the maximum number of additional shares of Common Stock issuable and the issuance of any warrants, options, subscription or purchase rights with respect to such convertible or exchangeable securities (collectively, "COMMON STOCK EQUIVALENTS"), shall be deemed an issuance of Common Stock. Any obligation, agreement or undertaking to issue Common Stock Equivalents at any time in the future shall be deemed to be an issuance at the time such obligation, agreement or undertaking is made or arises. No adjustment of the Conversion Value shall be made under this Section 5.4 upon the issuance of any shares of Common Stock which are issued pursuant to all the exercise, conversion or exchange of any Common Stock Equivalents. 5.4.2.2 Should the Net Consideration Per Share of any such Common Stock Equivalents shall be deemed decreased from time to time other than as a result of the application of anti-dilution provisions substantially similar to the provisions of this Certificate, then, upon the effectiveness of each such change, the Conversion Value will be that which would have been issued as obtained (a) had the adjustments made pursuant to Section 5.4.2.1 upon the issuance of such Common Stock Equivalents been made upon the basis of the new Net Consideration Per Share of such securities, and (b) had the adjustments made to the Conversion Value since the date of issuance of such Common Stock Equivalent; and Equivalents been made to such Conversion Value as adjusted pursuant to clause (iia) above. Any adjustment of the aggregate consideration for such maximum number of additional shares of Conversion Value which relates to any Common Stock Equivalent shall be deemed to be the minimum consideration received disregarded if, as, and receivable by the Company for the issuance of such additional shares of Common Stock pursuant to such Common Stock Equivalent. ii. Notwithstanding the foregoing, no adjustment shall be made pursuant to this Section 2(e) unless the consideration received and receivable by the Company per share of Common Stock for the issuance of such additional shares of Common Stock pursuant to when such Common Stock Equivalent expires or is canceled without being exercised, or is repurchased by the Corporation at a price per share at or less than the Market Price. No adjustment of Stated Value, so that the Exercise Price Conversion Value effective immediately upon such cancellation or expiration shall be made under this Section 2(e) upon the issuance of any Convertible Security which is issued pursuant equal to the exercise of any warrants or other subscription or purchase rights therefor, if any adjustment shall previously Conversion Value that would have been made in the Exercise Price then in effect upon (a) had the issuance of such warrants expired or other rights pursuant to this Section 2(e). No adjustment shall be made under this Section 2(e) if an adjustment is to be made under Section 2(f). No adjustment shall be made as a result of adjustment in the exercise or conversion price of canceled Common Stock EquivalentsEquivalent not been issued, if those and (b) had the adjustments occur by made to the terms Conversion Value since the date of issuance of such Common Stock EquivalentsEquivalents been made to the Conversion Value which would have been in effect had the expired or canceled Common Stock Equivalent not been issued.

Common Stock Equivalents. i. (a) Subject to Section 2(f)11.7, if the Company shall, after the Issuance Datedate hereof, issue any security or evidence of indebtedness which is convertible into or exchangeable for Common Stock ("Convertible Security"), or any warrant, option or other right to subscribe for or purchase Common Stock or any Convertible Security, other than pursuant to Employee Benefit Plans (together with Convertible Securities, "Common Stock Equivalent"), then the Exercise Price upon each such issuance shall be adjusted as provided in Section 2(d) 11.5 on the basis that (i) the maximum number of additional shares of Common Stock issuable pursuant to all such Common Stock Equivalents shall be deemed to have been issued as of the date of issuance of such Common Stock Equivalent; and (ii) the aggregate consideration for such maximum number of additional shares of Common Stock shall be deemed to be the minimum consideration received and receivable by the Company for the issuance of such additional shares of Common Stock pursuant to such Common Stock Equivalent. ii. (b) Notwithstanding the foregoing, no adjustment shall be made pursuant to this Section 2(e) 11.6 unless the consideration received and receivable by the Company per share of Common Stock for the issuance of such additional shares of Common Stock pursuant to such Common Stock Equivalent is less than the Market Price. No adjustment of the Exercise Price shall be made under this Section 2(e) 11.6 upon the issuance of any Convertible Security which is issued pursuant to the conversion or exercise of any other Convertible Security or the exercise of any warrants or other subscription or purchase rights therefor, if any adjustment shall previously have been made in the Exercise Price then in effect upon the issuance of such warrants or other rights pursuant to this Section 2(e)11.6. No adjustment shall be made under this Section 2(e) 11.6 if an adjustment is to be made under Section 2(f). No adjustment shall be made as a result of adjustment in the exercise or conversion price of Common Stock Equivalents, if those adjustments occur by the terms of such Common Stock Equivalents11.

Common Stock Equivalents. i. Subject to Section SECTION 2(f), if the Company shall, after the Issuance Date, issue any security or evidence of indebtedness which is convertible into or exchangeable for Common Stock ("Convertible Security"), or any warrant, option or other right to subscribe for or purchase Common Stock or any Convertible Security, other than pursuant to Employee Benefit Plans (together with Convertible Securities, "Common Stock Equivalent"), then the Exercise Price upon each such issuance shall be adjusted as provided in Section SECTION 2(d) on the basis that (i) the maximum number of additional shares of Common Stock issuable pursuant to all such Common Stock Equivalents shall be deemed to have been issued as of the date of issuance of such Common Stock Equivalent; and (ii) the aggregate consideration for such maximum number of additional shares of Common Stock shall be deemed to be the minimum consideration received and receivable by the Company for the issuance of such additional shares of Common Stock pursuant to such Common Stock Equivalent. ii. Notwithstanding the foregoing, no adjustment shall be made pursuant to this Section SECTION 2(e) unless the consideration received and receivable by the Company per share of Common Stock for the issuance of such additional shares of Common Stock pursuant to such Common Stock Equivalent is less than the Market Price. No adjustment of the Exercise Price shall be made under this Section SECTION 2(e) upon the issuance of any Convertible Security which is issued pursuant to the exercise of any warrants or other subscription or purchase rights therefor, if any adjustment shall previously have been made in the Exercise Price then in effect upon the issuance of such warrants or other rights pursuant to this Section SECTION 2(e). No adjustment shall be made under this Section SECTION 2(e) if an adjustment is to be made under Section SECTION 2(f). No adjustment shall be made as a result of adjustment in the exercise or conversion price of Common Stock Equivalents, if those adjustments occur by the terms of such Common Stock Equivalents.

Common Stock Equivalents. i. Subject to Section 2(f), if the Company shall, after the Issuance Date, issue any security or evidence of indebtedness which is convertible into or exchangeable for Common Stock ("Convertible Security"), or any warrant, option or other right to subscribe for or purchase Common Stock or any Convertible Security, other than pursuant to Employee Benefit Plans (together with Convertible Securities, "Common Stock Equivalent"), then the Exercise Price upon each such issuance shall be adjusted as provided in Section 2(d) on the basis that (i) the maximum number of additional shares of Common Stock issuable pursuant to all such Common Stock Equivalents shall be deemed to have been issued as of the date of issuance of such Common Stock Equivalent; and (ii) the aggregate consideration for such maximum number of additional shares of Common Stock shall be deemed to be the minimum consideration received and receivable by the Company for the issuance of such additional shares of Common Stock pursuant to such Common Stock Equivalent. ii. Notwithstanding the foregoing, no adjustment shall be made pursuant to this Section 2(e) unless the consideration received and receivable by the Company per share of Common Stock for the issuance of such additional shares of Common Stock pursuant to such Common Stock Equivalent is less than the Market Price. No adjustment of the Exercise Price shall be made under this Section 2(e) upon the issuance of any Convertible Security which is issued pursuant to the exercise of any warrants or other subscription or purchase rights therefor, if any adjustment shall previously have been made in the Exercise Price then in effect upon the issuance of such warrants or other rights pursuant to this Section 2(e). No adjustment shall be made under this Section 2(e) if an adjustment is to be made under Section 2(f). No adjustment shall be made as a result of adjustment in the exercise or conversion price of Common Stock Equivalents, if those adjustments occur by the terms of such Common Stock Equivalents.Price

Common Stock Equivalents. i. Subject to Section 2(fSECTION 2(F), if the Company shall, after the Issuance Date, issue any security or evidence of indebtedness which is convertible into or exchangeable for Common Stock ("Convertible Security"), or any warrant, option or other right to subscribe for or purchase Common Stock or any Convertible Security, other than pursuant to Employee Benefit Plans (together with Convertible Securities, "Common Stock Equivalent"), then the Exercise Price upon each such issuance shall be adjusted as provided in Section 2(dSECTION 2(D) on the basis that (i) the maximum number of additional shares of Common Stock issuable pursuant to all such Common Stock Equivalents shall be deemed to have been issued as of the date of issuance of such Common Stock Equivalent; and (ii) the aggregate consideration for such maximum number of additional shares of Common Stock shall be deemed to be the minimum consideration received and receivable by the Company for the issuance of such additional shares of Common Stock pursuant to such Common Stock Equivalent. ii. Notwithstanding the foregoing, no adjustment shall be made pursuant to this Section 2(eSECTION 2(E) unless the consideration received and receivable by the Company per share of Common Stock for the issuance of such additional shares of Common Stock pursuant to such Common Stock Equivalent is less than the Market Price. No adjustment of the Exercise Price shall be made under this Section 2(eSECTION 2(E) upon the issuance of any Convertible Security which is issued pursuant to the exercise of any warrants or other subscription or purchase rights therefor, if any adjustment shall previously have been made in the Exercise Price then in effect upon the issuance of such warrants or other rights pursuant to this Section 2(eSECTION 2(E). No adjustment shall be made under this Section 2(eSECTION 2(E) if an adjustment is to be made under Section 2(fSECTION 2(F). No adjustment shall be made as a result of adjustment in the exercise or conversion price of Common Stock Equivalents, if those adjustments occur by the terms of such Common Stock Equivalents.

Common Stock Equivalents. i. Subject Each Common Stock Equivalent outstanding immediately prior to Section 2(f)the Effective Time shall be converted into the right to receive (at the time, in the manner, and subject to the provisions of this Agreement and the Escrow Agreement, as applicable) an amount in cash, without interest, equal to product of: (1) the amount, if positive (such amount, the Company shall, after the Issuance Date, issue any security or evidence of indebtedness which is convertible into or exchangeable for Common Stock ("Convertible Security"), or any warrant, option or other right “Applicable Share Amount” with respect to subscribe for or purchase Common Stock or any Convertible Security, other than pursuant to Employee Benefit Plans (together with Convertible Securities, "such Common Stock Equivalent")) by which the Applicable Share Amount with respect to a share of Common Stock exceeds the exercise price per share payable upon the exercise of such Common Stock Equivalent, then the Exercise Price upon each such issuance shall be adjusted as provided in Section 2(d) on the basis that times (i2) the maximum number of additional shares of Common Stock issuable pursuant to all upon the exercise of such Common Stock Equivalents shall be deemed to have been issued Equivalent. For each Common Stock Equivalent outstanding as of the date Effective Time, the Applicable Share Amount with respect to such Common Stock Equivalent shall consist of issuance the following: (A) the amount, if positive (such amount, the “Closing Date Share Amount” with respect to such Common Stock Equivalent) by which the Closing Date Share Amount with respect to a share of Common Stock exceeds the exercise price per share payable upon the exercise of such Common Stock Equivalent; and (ii) provided, however, that if such exercise price per share equals or exceeds the aggregate consideration for such maximum number of additional shares Closing Date Share Amount with respect to a share of Common Stock shall be deemed to be Stock, then the minimum consideration received and receivable by the Company for the issuance of such additional shares of Common Stock pursuant Closing Date Share Amount with respect to such Common Stock Equivalent. ii. Notwithstanding the foregoing, no adjustment Equivalent shall be made pursuant to this Section 2(ezero; and (B) unless (x) if the consideration received and receivable by the Company per share of Common Stock for the issuance of such additional shares of Common Stock pursuant Closing Date Share Amount with respect to such Common Stock Equivalent is less greater than zero, an amount (such amount, the Market Price. No adjustment “Post-Closing Share Amount” with respect to such Common Stock Equivalent) equal to the Post-Closing Share Amount with respect to a share of Common Stock; or (y) if the Exercise Price shall be made under this Section 2(eClosing Date Share Amount with respect to such Common Stock Equivalent is zero, an amount (such amount, the “Post-Closing Share Amount” with respect to such Common Stock Equivalent) equal to the remainder of (1) the Post-Closing Share Amount with respect to a share of Common Stock, minus (2) the amount, if any, by which the exercise price per share payable upon the issuance of any Convertible Security which is issued pursuant to the exercise of any warrants or other subscription or purchase rights therefor, if any adjustment shall previously have been made in such Common Stock Equivalent exceeded the Exercise Price then in effect upon the issuance of such warrants or other rights pursuant Closing Date Share Amount with respect to this Section 2(e). No adjustment shall be made under this Section 2(e) if an adjustment is to be made under Section 2(f). No adjustment shall be made as a result of adjustment in the exercise or conversion price share of Common Stock Equivalentsin each case payable in accordance with and subject to, if those adjustments occur by and at the terms times provided for in this Article II. The Company shall take all action necessary to cause such Common Stock Equivalents to be treated as provided in this Article II and shall not permit any Common Stock Equivalents to be exercised after the Effective Time. All such shares of Common Stock and all such Common Stock Equivalents shall, as of the Effective Time, cease to be outstanding and shall automatically be canceled and retired and shall cease to exist, and each certificate, instrument or agreement evidencing any such shares of Common Stock (each a “Stock Certificate”) or Common Stock Equivalents (“Common Stock Equivalent Documents”) shall thereafter represent only the right to receive the Applicable Share Amount for such shares of Common Stock or for the shares of Common Stock issuable upon exercise of such Common Stock Equivalents, payable in accordance with and subject to this Article II. The holders of such shares of Common Stock or Common Stock Equivalents (each a “Company Holder”) shall from and after the Effective Time cease to have any rights with respect to such shares of Common Stock or Common Stock Equivalents, except as otherwise provided herein or by the TBOC. In addition, all shares of the Company’s Class B Common Stock, if any, and all shares of the Company’s Series A Preferred Stock, if any, shall, as of the Effective Time, cease to be outstanding and shall be automatically cancelled and retired and shall cease to exist, without any consideration therefor, and each certificate, instrument or agreement evidencing any such shares shall be null and void.