Equity in Lieu of Cash. 3.4.1 At Recipient’s option, exercisable at any time between the date hereof and January 13, 2012, Recipient may subscribe for a number of shares of Lenco’s Series A Convertible Preferred Stock having a value equal to or less than the aggregate amount of payables set forth in Sections 3.2.2 and 3.23 above. Upon issuance of such shares, the corresponding amount of payables set forth in Sections 3.2.2 and 3.2.3 will be cancelled. The issuance of such shares shall be conditioned upon Recipient and Lenco entering into a mutually acceptable agreement with respect to the purchase of such shares.
Equity in Lieu of Cash. Notwithstanding anything to the contrary in this Agreement, the Payout (as determined in accordance with Section 2(a) of this Agreement) or the Alternate Payout (as determined in accordance with Section 4 of this Agreement) may be made in whole or in part with shares of publicly tradable stock of the Company (“Company Shares”), in lieu of cash, if (i) the Committee determines, based on the advice of its financial and legal advisors, that payment of some or all of the Payout or Alternate Payout in cash would be materially adverse to the Company or (ii) you consent. In the case of the Payout, the Company Shares will be valued at the volume-weighted average closing price for the trading days between public announcement of the Company’s financial results for [Date] and the date two business days prior to [Date], or such other date, not later than [Date], as the Committee may determine (the “Payout VWAP Period”). In the case of the Alternate Payout, the Company Shares will be valued at the volume-weighted average closing price for the 10 trading days prior to the date your employment with or service to the Company or any Affiliate terminates (the “Termination Date”). To the extent the Payout or Alternate Payout is paid in Company Shares, and insufficient shares are available under the Company’s 2006 Equity Incentive Plan or any other equity incentive plan with Company Shares registered under the Securities Act of 1933, as amended, any balance will be paid in cash.
Equity in Lieu of Cash. Jigsaw may, in its sole discretion, agree to accept shares of EVTI restricted common stock in lieu of any cash payments due to Jigsaw under this Section 3. Jigsaw may do so by providing written notice thereof to EVTI. In such event the number of shares issuable to Jigsaw shall be determined at the discretion of Jigsaw based upon (i) the average closing price of EVTI common stock during the five trading days immediately prior to the date on which such written notice is received by EVTI after applying a 10% discount to such average closing price, or (ii) to the extent applicable, the price at which EVTI is offering shares of EVTI’s restricted common stock in a private placement offering taking place at the time that the written notice is received, or if no such private placement offering is then taking place, at the price at which EVTI sold shares of common stock in a private placement offering which was completed and closed within 30 days of the date on which the written notice was received. By way of example with regard to (i) above, if Jigsaw agrees to convert $10,000 of cash compensation based upon an average closing price of $4.00 per share, Jigsaw would be entitled to receive approximately 2,778 shares which represents 10,000 divided by 3.60.
Equity in Lieu of Cash. Jigsaw may, in its sole discretion, agree to accept shares of EVTI restricted common stock in lieu of any cash payments due to Jigsaw under this Section 3. Jigsaw may do so by providing written notice thereof to EVTI. In such event the number of shares issuable to Jigsaw shall be determined at the discretion of Jigsaw based upon (i) the average closing price of EVTI common stock during the five trading days immediately prior to the date on which such written notice is received by EVTI after applying a 10% discount to such average closing price, or (ii) to the extent applicable, the price at which EVTI is offering shares of EVTI’s restricted common stock in a private placement offering taking place at the time that the written notice is received, or if no such private placement offering is then taking place, at the price at which EVTI sold shares of common stock in a private placement offering which was completed and closed within 30 days of the date on which the written notice was received. By way of example with regard to (i) above, if Jigsaw agrees to convert $10,000 of cash compensation based upon an average closing price of $4.00 per share, Jigsaw would be entitled to receive approximately 2,778 shares which represents 10,000 divided by 3.60. Notwithstanding the foregoing, the maximum aggregate number of shares of EVTI restricted common stock issuable under this Section 3(e) is 100,000 shares.” This Amendment is hereby made part of and incorporated into the Agreement, with all of the terms and conditions of the Agreement remaining in full force and effect, except to the extent modified hereby. This Amendment may be executed in multiple counterparts, each of which may be executed by less than all of the parties and shall be deemed to be an original instrument which shall be enforceable against the parties actually executing such counterparts and all of which together shall constitute one and the same instrument. The exchange of copies of this Amendment and of signature pages by facsimile transmission or in pdf format shall constitute effective execution and delivery of this Amendment as to the parties and may be used in lieu of the original Amendment for all purposes. Signatures of the parties transmitted by facsimile or in pdf format shall be deemed to be their original signatures for all purposes.
