Common use of Conversion of Company Preferred Stock Clause in Contracts

Conversion of Company Preferred Stock. Subject to Section 1.8, each share of Company Preferred Stock issued and outstanding immediately prior to the Effective Time (other than any Dissenting Shares as provided in Section 1.9) will be cancelled, extinguished and converted automatically into the right to receive, upon surrender of the certificate formerly representing such shares of Company Preferred Stock (or compliance with Section 1.12 regarding lost certificates), one of the following amounts per share of Company Preferred Stock as determined in Parent’s absolute and sole discretion at or prior to Closing: (i) a cash payment equal to (A) the Company Closing Price multiplied by (B) the number of shares of Company Common Stock that such share of Company Preferred Stock is convertible into immediately prior to the Effective Time (calculated pursuant to the optional conversion provisions contained in the Articles of Incorporation); or (ii) a number of shares of Parent Common Stock equal to the product of (A) the Exchange Ratio, multiplied by (B) the number of shares of Company Common Stock that such shares of Company Preferred Stock is convertible into immediately prior to the Effective Time (calculated pursuant to the optional conversion provisions contained in the Articles of Incorporation); or (iii) a combination of (A) a cash payment, as determined by Parent in its sole and absolute discretion, in an amount less than (1) the Company Closing Price, multiplied by (2) the number of shares of Company Common Stock that such share of Company Preferred Stock is convertible into immediately prior to the Effective Time (calculated pursuant to the optional conversion provisions contained in the Articles of Incorporation), and (B) a number of shares of Parent Common Stock equal to the product of (1) the quotient obtained by dividing (a) the difference of the Company Closing Price minus the cash payment determined by Parent pursuant to this Section 1.6(b)(iii), by (b) the Parent Closing Price, multiplied by (2) the number of shares of Company Common Stock that such share of Company Preferred Stock is convertible into immediately prior to the Effective Time (calculated pursuant to the optional conversion provisions contained in the Articles of Incorporation); provided, that, Txxxxxxx Sxxxxxx LLP delivers the legal opinion contemplated by Section 5.17 to the extent the Merger Consideration is calculated pursuant to this Section 1.6(b)(iii). For purposes of example only, if the Company Closing Price is equal to $6.00, the Parent Closing Price is equal to $32.00, Parent determines to pay $2.00 in cash, and the applicable conversion ratio of such share of Company Preferred Stock is 1.1:1, then the Merger Consideration to be received for one share of such Company Capital Stock shall equal $2.00 in cash and 0.1375 shares of Parent Common Stock.

Conversion of Company Preferred Stock. Subject to Section 1.8, each (i) Series A Preferred Stock. Each share of Company Series A ------------------------ Preferred Stock of the Company ("Series A Preferred") issued and outstanding ------------------ immediately prior to the Effective Time (other than any shares of Series A Preferred that are converted into shares of Company Common Stock immediately prior to the Effective Time, any shares of Series A Preferred to be canceled pursuant to Section 1.6(c) and any Dissenting Shares (as defined and to the extent provided in Section 1.91.7(a))) will be cancelled, canceled and extinguished and be converted automatically into the right to receive, upon surrender of the certificate formerly representing such shares of Company Preferred Stock (or compliance with Section 1.12 regarding lost certificates), one of the following amounts per share of Company Preferred Stock as determined in Parent’s absolute and sole discretion at or prior to Closing: (i) a cash payment equal to (A) the Company Closing Price multiplied by (B) the number of shares of Company Common Stock receive that such share of Company Preferred Stock is convertible into immediately prior to the Effective Time (calculated pursuant to the optional conversion provisions contained in the Articles of Incorporation); or (ii) a number of shares of Parent Common Stock equal to the product Series A Exchange Ratio (as defined in Section ----------------------- 1.6(i) below), upon surrender of the certificate representing such share of Series A Preferred in the manner provided in Section 1.8. (Aii) the Exchange Ratio, multiplied by (B) the number Series B Preferred Stock. Each share of shares of Company Common Stock that such shares of Company Series B ------------------------ Preferred Stock is convertible into of the Company ("Series B Preferred") issued and outstanding ------------------ immediately prior to the Effective Time (calculated pursuant to the optional conversion provisions contained in the Articles other than any shares of Incorporation); or (iii) a combination of (A) a cash payment, as determined by Parent in its sole and absolute discretion, in an amount less than (1) the Company Closing Price, multiplied by (2) the number of Series B Preferred that are converted into shares of Company Common Stock that such share of Company Preferred Stock is convertible into immediately prior to the Effective Time (calculated Time, any shares of Series B Preferred to be canceled pursuant to Section 1.6(c) and any Dissenting Shares (as defined and to the optional conversion provisions contained extent provided in Section 1.7(a))) will be canceled and extinguished and be converted automatically into the Articles of Incorporation), and (B) a right to receive that number of shares of Parent Common Stock equal to the product of Series B Exchange Ratio (1as defined in Section ----------------------- 1.6(i) the quotient obtained by dividing (a) the difference below), upon surrender of the Company Closing Price minus the cash payment determined by Parent pursuant to this Section 1.6(b)(iii), by (b) the Parent Closing Price, multiplied by (2) the number of shares of Company Common Stock that certificate representing such share of Company Series B Preferred Stock is convertible into immediately prior to the Effective Time (calculated pursuant to the optional conversion provisions contained in the Articles of Incorporation); provided, that, Txxxxxxx Sxxxxxx LLP delivers the legal opinion contemplated by manner provided in Section 5.17 to the extent the Merger Consideration is calculated pursuant to this Section 1.6(b)(iii). For purposes of example only, if the Company Closing Price is equal to $6.00, the Parent Closing Price is equal to $32.00, Parent determines to pay $2.00 in cash, and the applicable conversion ratio of such share of Company Preferred Stock is 1.1:1, then the Merger Consideration to be received for one share of such Company Capital Stock shall equal $2.00 in cash and 0.1375 shares of Parent Common Stock1.8.

Conversion of Company Preferred Stock. Subject to Section 1.8(i) Each share of Series A-1 Convertible Preferred Stock (“Series A-1 Preferred”) of the Company, $.001 par value per share and each share of Series A-2 Convertible Preferred Stock (“Series A-2 Preferred”) of the Company, $.001 par value per share (together with the Series A-1 Convertible Preferred, the “Company Preferred Stock Stock” and, together with the Company Common Stock, “Company Shares”) that was issued in May 2002 (the “2002 Preferred”), issued and outstanding immediately prior to the Effective Time (other than any Excluded Shares, any shares of Company Preferred Stock that are converted into shares of Company Common Stock immediately prior to the Effective Time and any Dissenting Shares as provided in Section 1.9) will Shares), shall be cancelled, extinguished and converted automatically into the right to receive, upon surrender of the certificate formerly Certificate representing such shares of Company Preferred Stock (or compliance with Section 1.12 regarding lost certificates), one of the following amounts per share of Company Preferred Stock as determined in Parent’s absolute and sole discretion at or prior to Closing: (i) a cash payment equal to (A) the Company Closing Price multiplied by (B) the number of shares of Company Common Stock that such share of Company Preferred Stock in accordance with the terms of Section 2.4 hereof, and subject to the conditions set forth in this Agreement, including, without limitation, the indemnification and escrow provisions set forth in ARTICLE IX hereof and in the Escrow Agreement, the following consideration (the “2002 Preferred Merger Consideration”). (A) that number of shares of Parent Common as is convertible into equal to the 2002 Preferred Stock Exchange Ratio (as defined in Section 2.1(d) below); (B) that number of shares of Parent Common as is equal to the Common Stock Exchange Ratio (as defined in Section 2.1(d) below); (C) cash equal to the 2002 Preferred Cash Exchange Ratio (as defined in Section 2.1(d) below); (D) cash equal to the Common Cash Exchange Ratio (as defined in Section 2.1(d) below); and (E) if and only if the Two Year Parent Trading Price is less than $3.00, cash equal to the Additional Cash Exchange Amount (as defined in Section 2.1(d) below), if any, within ten (10) Business Days following the two (2) year anniversary of the Closing Date. (ii) Each share of Series A-1 Preferred and Series A-2 Preferred that was issued in January 2003, issued and outstanding immediately prior to the Effective Time (calculated pursuant other than any Excluded Shares, any shares of Company Preferred Stock that are converted into shares of Company Common Stock immediately prior to the optional conversion Effective Time and any Dissenting Shares), shall be converted into the right to receive, upon surrender of the Certificate representing such share of Company Preferred Stock in accordance with the terms of Section 2.4 hereof, and subject to the conditions set forth in this Agreement, including, without limitation, the indemnification and escrow provisions contained set forth in ARTICLE IX hereof and in the Articles of IncorporationEscrow Agreement, the following consideration (the “January 2003 Preferred Merger Consideration”); or. (iiA) a that number of shares of Parent Common Stock as is equal to the product of January 2003 Preferred Stock Exchange Ratio (Aas defined in Section 2.1(d) the Exchange Ratio, multiplied by below); (B) the that number of shares of Company Parent Common as is equal to the Common Stock Exchange Ratio (as defined in Section 2.1(d) below); (C) cash equal to the January 2003 Preferred Cash Exchange Ratio (as defined in Section 2.1(d) below); (D) cash equal to the Common Cash Exchange Ratio (as defined in Section 2.1(d) below); and (E) if and only if the Two Year Parent Trading Price is less than $3.00, cash equal to the Additional Cash Exchange Amount (as defined in Section 2.1(d) below), if any, within ten (10) Business Days following the two (2) year anniversary of the Closing Date. (iii) Each share of Series A-1 Preferred and Series A-2 Preferred that such shares of Company Preferred Stock is convertible into was issued in February 2003, issued and outstanding immediately prior to the Effective Time (calculated pursuant to the optional conversion provisions contained in the Articles other than any Excluded Shares, any shares of Incorporation); or (iii) a combination of (A) a cash payment, as determined by Parent in its sole and absolute discretion, in an amount less than (1) the Company Closing Price, multiplied by (2) the number of Preferred Stock that are converted into shares of Company Common Stock that immediately prior to the Effective Time and any Dissenting Shares), shall be converted into the right to receive, upon surrender of the Certificate representing such share of Company Preferred Stock is convertible into immediately prior in accordance with the terms of Section 2.4 hereof, and subject to the Effective Time (calculated pursuant to conditions set forth in this Agreement, including, without limitation, the optional conversion indemnification and escrow provisions contained set forth in ARTICLE IX hereof and in the Articles of IncorporationEscrow Agreement, the following consideration (the “February 2003 Preferred Merger Consideration” and, together with the 2002 Preferred Merger Consideration, the January 2003 Preferred Merger Consideration and the Common Merger Consideration, the “Merger Consideration”), and . (BA) a that number of shares of Parent Common Stock as is equal to the product of February 2003 Preferred Stock Exchange Ratio (1as defined in Section 2.1(d) the quotient obtained by dividing below); (aB) the difference of the Company Closing Price minus the cash payment determined by Parent pursuant to this Section 1.6(b)(iii), by (b) the Parent Closing Price, multiplied by (2) the that number of shares of Company Parent Common Stock that such share of Company Preferred Stock is convertible into immediately prior to the Effective Time (calculated pursuant to the optional conversion provisions contained in the Articles of Incorporation); provided, that, Txxxxxxx Sxxxxxx LLP delivers the legal opinion contemplated by Section 5.17 to the extent the Merger Consideration is calculated pursuant to this Section 1.6(b)(iii). For purposes of example only, if the Company Closing Price as is equal to $6.00, the Common Stock Exchange Ratio (as defined in Section 2.1(d) below); (C) cash equal to the February 2003 Preferred Cash Exchange Ratio (as defined in Section 2.1(d) below); (D) cash equal to the Common Cash Exchange Ratio (as defined in Section 2.1(d) below); and (E) if and only if the Two Year Parent Closing Trading Price is less than $3.00, cash equal to $32.00the Additional Cash Exchange Amount (as defined in Section 2.1(d) below), Parent determines to pay $2.00 in cashif any, and within ten (10) Business Days following the applicable conversion ratio two (2) year anniversary of such share of Company Preferred Stock is 1.1:1, then the Merger Consideration to be received for one share of such Company Capital Stock shall equal $2.00 in cash and 0.1375 shares of Parent Common StockClosing Date.

Conversion of Company Preferred Stock. Subject to Section 1.8, each Each share of Company Series A ------------------------------------- Preferred Stock of the Company ("Series A Preferred"), Series B Preferred Stock ------------------ of the Company ("Series B Preferred"), Series B-1 Preferred Stock of the Company ------------------ ("Series B-1 Preferred"), Series C Preferred Stock of the Company ("Series C -------------------- -------- Preferred") and Series D Preferred Stock of the Company ("Series D Preferred" --------- ------------------ and together with the Series A Preferred, the Series B Preferred, the Series B-1 Preferred and the Series C Preferred, the "Company Preferred") issued and ----------------- outstanding immediately prior to the Effective Time (other than any Dissenting Shares as provided in Section 1.9) will be cancelled, extinguished and converted automatically into the right to receive, upon surrender of the certificate formerly representing such shares of Company Preferred that are converted into shares of Company Common Stock (or compliance with Section 1.12 regarding lost certificates)immediately prior to the Effective Time, one of the following amounts per share any shares of Company Preferred Stock to be canceled pursuant to Section 1.6(c) and any Dissenting Shares (as determined defined and to the extent provided in Parent’s absolute Section 1.7(a)) will be canceled and sole discretion at or prior to Closingextinguished and be converted automatically into: (i1) a cash payment that number of shares of Parent Common Stock as is equal to the quotient obtained by dividing (Ax) the Liquidation Preference of such Series of Company Closing Price multiplied Preferred Stock, as specified in the Company's Articles of Incorporation immediately prior to the Effective Time by (By) the Actual Parent Stock Price (as defined in paragraph (h) below); (2) that number of shares of Parent Common Stock as is equal to the product obtained by multiplying (x) the Stock Ratio to Common Holders (as defined in paragraph (h) below) by (y) the number of shares of Company Common Stock that into which such share of Company Preferred Stock is convertible into would convert pursuant to an automatic conversion as described in the Company's Articles of Incorporation immediately prior to the Effective Time (calculated pursuant to the optional conversion provisions contained in the Articles of Incorporation)Time; orand (ii3) a number of shares of Parent Common Stock cash equal to the product of obtained by multiplying (Ax) the Exchange Ratio, multiplied Cash Rate to Common Holders (as defined in paragraph (h) below) by (By) the number of shares of Company Common Stock that into which such shares share of Company Preferred Stock is convertible into would convert pursuant to an automatic conversion as described in the Company's Articles of Incorporation immediately prior to the Effective Time (calculated pursuant to the optional conversion provisions contained in the Articles of Incorporation); or (iii) a combination of (A) a cash payment, as determined by Parent in its sole and absolute discretion, in an amount less than (1) the Company Closing Price, multiplied by (2) the number of shares of Company Common Stock that such share of Company Preferred Stock is convertible into immediately prior to the Effective Time (calculated pursuant to the optional conversion provisions contained in the Articles of Incorporation), and (B) a number of shares of Parent Common Stock equal to the product of (1) the quotient obtained by dividing (a) the difference of the Company Closing Price minus the cash payment determined by Parent pursuant to this Section 1.6(b)(iii), by (b) the Parent Closing Price, multiplied by (2) the number of shares of Company Common Stock that such share of Company Preferred Stock is convertible into immediately prior to the Effective Time (calculated pursuant to the optional conversion provisions contained in the Articles of Incorporation); provided, that, Txxxxxxx Sxxxxxx LLP delivers the legal opinion contemplated by Section 5.17 to the extent the Merger Consideration is calculated pursuant to this Section 1.6(b)(iii). For purposes of example only, if the Company Closing Price is equal to $6.00, the Parent Closing Price is equal to $32.00, Parent determines to pay $2.00 in cash, and the applicable conversion ratio of such share of Company Preferred Stock is 1.1:1, then the Merger Consideration to be received for one share of such Company Capital Stock shall equal $2.00 in cash and 0.1375 shares of Parent Common StockTime.