Common use of Contingent Value Rights Clause in Contracts

Contingent Value Rights. In the event the Company converts (regardless of whether any such shares are actually converted pursuant to Section 13 of the Articles Supplementary) the shares of Series C Preferred Stock into Common Stock pursuant to the terms of the Stock Purchase Agreement and the Articles, then: (a) On the Test Date, the Company shall calculate the VWAP per Common Share for the period covering the 90th through the 120th trading days after the Election Date (as defined in the Articles) (the “CVR Period VWAP”). (b) Within five (5) Business Days following the Test Date, the Company shall pay to the Holder, in immediately available funds to an account designated in writing by such Holder, the amount, if any, with respect to each share of the Common Stock into which shares of Series C Preferred Stock were converted (regardless of whether any such shares are actually converted pursuant to Section 13 of the Articles Supplementary) (“Common Shares”) held by such Holder (and/or its assignees) on the Test Date equal to: (i) the number of Common Shares held by such Investor at the close of business on the Test Date multiplied by (ii) the amount (the “Settlement Amount”), which shall not be less than zero nor greater than $2.00, equal to the difference between (A) the Conversion Price (as defined in the Articles) (as may be adjusted from time to time pursuant to Section 7 of the Articles) and (B) the CVR Period VWAP. (c) If the number of shares of Common Stock is adjusted upon the occurrence of any event that would have resulted in the adjustment of the Fixed Conversion Price (as defined in the Articles Supplementary), the number of Contingent Value Rights shall be adjusted proportionately.

Contingent Value Rights. In the event the Company converts (regardless of whether any such shares are actually converted pursuant to Section 13 of the Articles Supplementary) the shares of Series C Preferred Stock into Common Stock pursuant to the terms of the Stock Purchase Agreement and the Articles, then: (a) On the close of business as of the Test Date, the Company Company, together with the Investor, shall calculate the VWAP per Common Share for the period covering the 90th through last ten (10) Trading Days of the 120th trading days after Lock-Up Period, including, for the Election avoidance of doubt, the Test Date (as defined in the Articles) (the “CVR Lock-Up Period VWAP”). (b) Within five (5) Business Days following the Test DateNot later than April 1, 2014, the Company shall pay to the HolderInvestor, in immediately available funds to an account designated in writing by such HolderInvestor, an amount (the amount, if any, with respect to each share of the Common Stock into which shares of Series C Preferred Stock were converted (regardless of whether any such shares are actually converted pursuant to Section 13 of the Articles Supplementary) (“Common SharesSettlement Amount”) held by such Holder (and/or its assignees) on the Test Date equal to: to (i) the number of Common Shares Contingent Value Rights held by such the Investor at the close of business on the Test Date multiplied by (ii) the amount (the “Settlement Amount”), which shall not be less than zero nor greater than $2.00, equal to the difference between (A) the Conversion Purchase Price minus (as defined in B) the ArticlesLock-Up Period VWAP, which Settlement Amount shall not be less than zero nor, subject to Section 2(c) below, greater than $0.46 (the “Settlement Cap”) (as may be adjusted from time to time pursuant to in accordance with Section 7 of the Articles) and (B) the CVR Period VWAP2(d)). (c) If prior to the number expiration of the Lock-Up Period, other than (A) pursuant to any bona fide, underwritten public offering, (B) pursuant to the conversion of the Class B-2 Common Stock into shares of Common Stock is Stock, or (C) pursuant to the Equity Incentive Plans, the Company issues or sells (i) Shares at a greater than 5% discount to the 10-day VWAP (measured on the ten Trading Days prior to the date the price for such Shares was determined) or (ii) rights, options or warrants in respect of Shares allowing the holders thereof to purchase Shares at a greater than 5% discount to the 10-day VWAP (measured on the ten Trading Days prior to the date the price for such securities was determined), then the Settlement Cap shall no longer apply, and the Settlement Amount shall be unlimited. (d) The terms “Contingent Value Rights”, “Lock-Up Period VWAP”, “Purchase Price” and “Settlement Cap”, and any amount set forth herein, shall be adjusted upon appropriately to account for the occurrence of any stock split, subdivision, dividend or distribution affecting the Common Shares (or other securities or rights convertible into, or entitling the holder thereof to receive directly or indirectly Common Shares), combination or other similar recapitalization or event that would have resulted in occurring after the adjustment date hereof and prior to the determination of the Fixed Conversion Price (as defined in the Articles Supplementary), the number of Contingent Value Rights shall be adjusted proportionatelySettlement Amount.