Common use of Gross Up Rights Clause in Contracts

Gross Up Rights. (a) If at any time after Closing, the Company issues or proposes to issue any Voting Securities or any Participating Preferred Stock, whether (i) for financing, (ii) in connection with mergers and acquisitions, (iii) in connection with the exercise of Convertible Rights, (iv) upon the exercise of any option, warrant, stock appreciation right or other similar instrument granted to officers, directors, employees, consultants or others, (v) in the form of restricted shares or similar instruments, (vi) or otherwise, Buyer shall have the option and right to acquire such Voting Securities so that immediately after such issuance Buyer shall Beneficially Own the same Ownership Percentage of such Voting Securities as was Beneficially Owned by Buyer and its Affiliates before such issuance and to acquire its Ownership Percentage of any such Participating Preferred Stock in the manner described below; provided that any capital stock acquired by Buyer or its Affiliates in connection with any Required Purchase shall not be taken into account for purposes of the calculations required by this Section 2.04(a); and provided further that, in the case of any securities (except for any Participating Preferred Stock which are also Voting Securities) described in clause (ii) of the definition of Voting Securities, Buyer’s rights under this Section shall arise upon any conversion or exchange of such Voting Securities for securities entitled, in the ordinary course, to vote in the election of Directors of the Company, rather than upon the issuance thereof. (b) Prior to issuing any Voting Securities or Participating Preferred Stock (other than issuances pursuant to clauses (iii), (iv) and (v) of Section 2.04(a)), the Company shall provide Buyer with ten Business Days’ prior written notice (or if such notice period is not possible under the circumstances, such prior notice as is practicable) of the proposed issuance. Buyer, acting directly or through its Affiliates, shall have the right, exercisable by providing written notice to the Company of the exercise of its rights within ten days after receipt of the Company’s notice, to purchase for cash directly from the Company (i) up to a sufficient number of such Voting Securities so that, after giving effect to such issuance, Buyer and its Affiliates will Beneficially Own the same Ownership Percentage as was Beneficially Owned by Buyer and its Affiliates immediately prior to the issuance of such Voting Securities or (ii) its Ownership Percentage of such Participating Preferred Stock (or to maintain its Ownership Percentage of any class of Participating Preferred Stock previously issued by the Company and purchased by Buyer or its Affiliates). The purchase price for any Voting Securities purchased by Buyer or its Affiliates pursuant to this Section 2.04(b) will be (A) in the case of an issuance of Voting Securities or Participating Preferred Stock other than in connection with mergers and acquisitions, the lesser of (x) the Prevailing Fair Market Value of such Voting Securities or Participating Preferred Stock on the date of issuance thereof or (y) the price (including any assumed indebtedness which is part of the purchase price and valuing any non-cash consideration at Prevailing Fair Market Value) at which the Company issues such Voting Securities or Participating Preferred Stock to other shareholders or Third Parties and (B) in the case of an issuance of Voting Securities or Participating Preferred Stock in connection with any merger or acquisition the arithmetic average, weighted by reference to daily trading volume, of the closing prices of such Voting Securities or Participating Preferred Stock during the 30 trading day period ending immediately prior to the closing of such merger or acquisition. The Company shall provide such information, to the extent reasonably available, relating to any non-cash consideration as Buyer may reasonably request in order to evaluate any non-cash consideration paid in respect of any issuance pursuant to this Section 2.04(b). If, in connection with any issuance by the Company covered by this Section 2.04(b), Buyer gives notice of its intent to exercise its option under this Section 2.04(b) but has not purchased the securities subject thereto within 60 days thereafter for reasons not primarily related to actions or omissions of the Company or the absence of any approvals or consents or the taking of any other actions required to be taken under Applicable Law or the prohibition on purchasing such securities during such period imposed by applicable securities laws, Buyer shall be deemed to have waived its rights to purchase such securities under this Section 2.04 with respect to such issuance of Voting Securities or Participating Preferred Stock. (c) No later than 15 days after the end of each of its fiscal quarters, the Company shall give Buyer notice of the aggregate number of Voting Securities issued during the preceding fiscal quarter under clauses (iii), (iv) and (v) of Section 2.04(a). Within ten days of the receipt of such notice Buyer shall have the right to take or cause to be taken the following actions, in the following order of priorities, in order to ensure that, after giving effect to such actions, Buyer and its Affiliates will Beneficially Own the same Ownership Percentage as was Beneficially Owned by Buyer and its Affiliates immediately before the beginning of such fiscal quarter (the “Equalized Percentage”): (i) first, Buyer, acting directly or through its Affiliates, shall have a right to purchase from the Company the number of shares of Treasury Stock necessary to reach the Equalized Percentage; (ii) second, to the extent that the Company does not have available enough shares of Treasury Stock to permit Buyer and its Affiliates to reach the Equalized Percentage, the Company shall, unless prohibited by Applicable Law, and subject to the receipt of any required regulatory approval, use its reasonable best efforts to repurchase in the open market within 15 days after the delivery of the notice to Buyer, the number of shares necessary to allow Buyer and its Affiliates to achieve the Equalized Percentage after giving effect to any purchases pursuant to clause (i); (iii) third, at the Company’s reasonable election (provided that the Company shall have acted reasonably in making its election), to the extent that the combination of the actions contemplated by clauses (i) and (ii) are not adequate to allow Buyer and its Affiliates to reach the Equalized Percentage, Buyer, acting directly or through its Affiliates, shall have the right to purchase from the Company newly issued shares; provided that, (A) to the extent that the approval of the Company’s shareholders is required in connection with such issuance, upon Buyer’s request the Company will convene a shareholders’ meeting to approve such issuance and (B) unless such meeting can be held within 90 days of Buyer’s request or if such meeting is held and approval is not obtained, Buyer and its Affiliates shall have the option of proceeding to make the purchases contemplated by clause (iv); and (iv) fourth, to the extent that the combination of the actions contemplated by clauses (i) through (iii) are not adequate to allow Buyer and its Affiliates to reach the Equalized Percentage, Buyer and its Affiliates shall have the right, subject to Applicable Law, to purchase in open market transactions or from third parties, the number of Voting Securities necessary to allow them to reach the Equalized Percentage. (d) If Buyer or its Affiliates purchase Treasury Stock or newly issued Common Stock pursuant to Section 2.04(c), the purchase price for such Treasury Stock or newly issued Common Stock will be the Prevailing Fair Market Value of the Common Stock on the date of issuance of newly issued Common Stock or purchase of Treasury Stock, as the case may be; provided that, to the extent that the event giving rise to Buyer’s and its Affiliates’ rights under Section 2.04(c) is the conversion of the PIERS Instruments, Buyer and its Affiliates shall be required to purchase such shares of Common Stock at the conversion price under the applicable PIERS Instruments. (e) If, at the time of any purchase by Buyer of Voting Securities pursuant to this Section 2.04, the Voting Trustee shall hold any Voting Securities, the Buyer will cause the Voting Trustee to purchase the number of Voting Securities that is determined by multiplying the number of Voting Securities to be purchased by Buyer pursuant to this Section 2.04 by a fraction, the numerator of which is the number of Voting Securities held by the Voting Trustee immediately before such purchase and the denominator of which is the total number of Voting Securities held by Buyer and its Affiliates (including the Voting Trustee) immediately before such purchase.

Gross Up Rights. (a) If at any time after ClosingDuring the Information Rights Period, solely to the extent permitted by Law, if the Company issues or proposes to newly issue any Voting Securities a number of shares of Common Stock or any Participating Preferred Stock, whether (i) preferred stock convertible to or exchangeable for financing, (ii) in connection with mergers and acquisitions, (iii) in connection with the exercise of Convertible Rights, (iv) upon the exercise of any option, warrant, stock appreciation right or other similar instrument granted to officers, directors, employees, consultants or others, (v) in the form of restricted shares or similar instruments, (vi) or otherwise, Buyer shall have the option and right to acquire such Voting Securities so that immediately after such issuance Buyer shall Beneficially Own the same Ownership Percentage of such Voting Securities as was Beneficially Owned by Buyer and its Affiliates before such issuance and to acquire its Ownership Percentage of any such Participating Preferred Stock in the manner described below; provided that any capital stock acquired by Buyer or its Affiliates in connection with any Required Purchase shall not be taken into account for purposes of the calculations required by this Section 2.04(a); and provided further that, in the case of any securities (except for any Participating Preferred Stock which are also Voting Securities) described in clause (ii) of the definition of Voting Securities, Buyer’s rights under this Section shall arise upon any conversion or exchange of such Voting Securities for securities entitled, in the ordinary course, to vote in the election of Directors of the Company, rather than upon the issuance thereof. (b) Prior to issuing any Voting Securities or Participating Preferred Common Stock (other than issuances pursuant to clauses (iiian Excluded Issuance), (iv) and (v) of Section 2.04(a)), then the Company shall provide Buyer with ten Business Days’ prior written notice shall: (or if such notice period is not possible under the circumstances, such prior notice as is practicablei) of the proposed issuance. Buyer, acting directly or through its Affiliates, shall have the right, exercisable by providing give written notice to the Company of the exercise of its rights within Purchaser (no less than ten (10) business days after receipt of the Company’s notice, to purchase for cash directly from the Company (i) up to a sufficient number of such Voting Securities so that, after giving effect to such issuance, Buyer and its Affiliates will Beneficially Own the same Ownership Percentage as was Beneficially Owned by Buyer and its Affiliates immediately prior to the issuance of such Voting Securities or (ii) its Ownership Percentage of such Participating Preferred Stock (or to maintain its Ownership Percentage of any class of Participating Preferred Stock previously issued by the Company and purchased by Buyer or its Affiliates). The purchase price for any Voting Securities purchased by Buyer or its Affiliates pursuant to this Section 2.04(b) will be (A) in the case of an issuance of Voting Securities or Participating Preferred Stock other than in connection with mergers and acquisitions, the lesser of (x) the Prevailing Fair Market Value of such Voting Securities or Participating Preferred Stock on the date of issuance thereof or (y) the price (including any assumed indebtedness which is part of the purchase price and valuing any non-cash consideration at Prevailing Fair Market Value) at which the Company issues such Voting Securities or Participating Preferred Stock to other shareholders or Third Parties and (B) in the case of an issuance of Voting Securities or Participating Preferred Stock in connection with any merger or acquisition the arithmetic average, weighted by reference to daily trading volume, of the closing prices of such Voting Securities or Participating Preferred Stock during the 30 trading day period ending immediately prior to the closing of such merger issuance or, if the Company reasonably expects such issuance to be completed in less than ten (10) business days, such shorter period (which shall not be less than five (5) business days)), setting forth in reasonable detail (A) the expected price (which may be a formula or acquisition. The unspecified future closing price) and other terms of the proposed sale of such Common Stock or preferred stock, as applicable, and (B) the amount of such Common Stock or preferred stock, as applicable, proposed to be issued (the “Proposed Securities”); provided that following the delivery of such notice, the Company shall provide deliver to Purchaser any such information, to the extent reasonably available, relating to any non-cash consideration as Buyer information Purchaser may reasonably request in order to evaluate the proposed issuance, except that the Company shall not be required to deliver any noninformation that has not been or will not be provided or otherwise made available to the other proposed purchasers of the Proposed Securities; provided, further, that if such information is subsequently provided to the proposed purchasers of the Proposed Securities, it shall also be delivered to Purchaser substantially contemporaneously; and (ii) offer to issue, convey and sell to Purchaser, on such terms as the Proposed Securities are issued and upon full payment by Purchaser, a portion of the Proposed Securities equal to the percentage of Common Stock beneficially owned by Purchaser (calculated on an As-cash consideration paid Converted Basis as of immediately prior to the issuance of the Proposed Securities) (such amount of Proposed Securities, the “Participation Portion”). (b) Purchaser will have the right (but not the obligation), exercisable by irrevocable written notice to the Company, to accept the Company’s offer and irrevocably commit Purchaser to purchase any or all of the Participation Portion on the terms specified in respect of any issuance pursuant to this Section 2.04(bsuch notice from the Company (the “Gross-up Right”). If, in connection with any issuance which notice must be given within five (5) business days (or if the notice by the Company covered by this Section 2.04(b)was sent in accordance with the preceding paragraph five (5) business days prior to the proposed issuance date, Buyer gives within three (3) business days) after receipt of such notice of its intent to exercise its option under this Section 2.04(b) but has not purchased the securities subject thereto within 60 days thereafter for reasons not primarily related to actions or omissions of from the Company or (the absence failure of any approvals or consents or the taking of any other actions required Purchaser to be taken under Applicable Law or the prohibition on purchasing respond within such securities during such time period imposed by applicable securities laws, Buyer shall be deemed to have waived its rights to purchase such securities under this Section 2.04 an irremovably and unconditional waiver of Purchaser’s Gross-up Rights with respect to such issuance of Voting Proposed Securities). The closing of the exercise of such Gross-up Right shall take place simultaneously with the closing of the sale of the Proposed Securities giving rise to such Gross-up Right; provided, however, that the closing of any purchase of Proposed Securities by Purchaser may be extended beyond the closing of the sale of the Proposed Securities giving rise to such Gross-up Right to the extent necessary to obtain required approvals from any Governmental Entity to consummate the issuance and purchase of Proposed Securities to Purchaser pursuant to such Gross-up Right. Upon the expiration of the offering period described above, the Company will be free to sell such Proposed Securities that Purchaser has not elected to purchase during the sixty (60) days following such expiration on terms and conditions not more favorable (other than in de minimis respects) to the purchasers thereof than those offered to Purchaser in the notice delivered in accordance with Section 4.4(a); provided, however, that such sixty (60)-day period may be extended an additional forty-five (45) days if a definitive agreement for the issuance of the Proposed Securities has been entered into prior to the end of such sixty (60)-day period and the Company has not issued the Proposed Securities due to the need for the Company, its Subsidiaries or Participating Preferred Stockany proposed purchaser of the Proposed Securities to obtain any required approval from any Governmental Entity to consummate the sale, issuance and purchase of Proposed Securities. Any Proposed Securities offered, issued, conveyed or sold by the Company after such sixty (60)-day period (as may be extended in accordance with the foregoing sentence) must be reoffered to issue, convey or sell to Purchaser pursuant to and subject to the terms of this Section 4.4. Notwithstanding anything in this Section 4.4 to the contrary, the Company shall not be under any obligation to consummate any proposed issuance of Proposed Securities giving rise to any Gross-up Right, and there shall be no liability under this Section 4.4 on the part of the Company or any of its Subsidiaries to Purchaser, its affiliates or any other person, if the Company does not consummate a previously proposed issuance of Proposed Securities, regardless of whether Purchaser has delivered an irrevocable notice pursuant to this Section 4.4(b). (c) No later The election by Purchaser not to exercise its Gross-up Right in any one instance shall not affect Purchaser’s Gross-up Right as to any subsequent proposed issuance of Proposed Securities. (d) In the case of an issuance subject to this Section 4.4 for consideration in whole or in part other than 15 days after the end of each of its fiscal quarterscash, including securities acquired in exchange therefor (other than securities by their terms so exchangeable), the Company consideration other than cash shall give Buyer notice of the aggregate number of Voting Securities issued during the preceding fiscal quarter under clauses (iii), (iv) and (v) of Section 2.04(a). Within ten days of the receipt of such notice Buyer shall have the right to take or cause be deemed to be taken the following actions, fair market value thereof as reasonably determined in good faith by the following order Board of priorities, in order to ensure that, after giving effect to such actions, Buyer and its Affiliates will Beneficially Own the same Ownership Percentage as was Beneficially Owned by Buyer and its Affiliates immediately before the beginning of such fiscal quarter (the “Equalized Percentage”):Directors. (ie) first, Buyer, acting directly or through its Affiliates, shall have a right to purchase from In the Company the number of shares of Treasury Stock necessary to reach the Equalized Percentage; (ii) second, to the extent event that the Company does is not have available enough shares required to offer or reoffer to Purchaser any Proposed Securities because such issuance would require the Company to obtain shareholder approval in respect of Treasury Stock to permit Buyer and its Affiliates to reach the Equalized Percentageissuance of any Proposed Securities under the listing rules of the NYSE or any other securities exchange or any other Law, the Company shall, unless prohibited by Applicable Law, and subject upon Purchaser’s reasonable request delivered to the Company in writing within no later than five (5) business days following its receipt of any required regulatory approvalthe written notice of such issuance to Purchaser pursuant to Section 4.4(a)(i), use its reasonable best efforts consider and discuss in good faith modifications proposed by Purchaser to repurchase in the open market within 15 days after the delivery terms and conditions of such portion of the notice Proposed Securities that would otherwise be issued to Buyer, the number of shares necessary to allow Buyer and its Affiliates to achieve the Equalized Percentage after giving effect to any purchases pursuant to clause (i); (iii) third, at the Company’s reasonable election (provided Purchaser such that the Company would not be required to obtain shareholder approval in respect of the issuance of such Proposed Securities as so modified. (f) The Company shall have acted reasonably no obligations pursuant to this Section 4.4 (including any obligation to offer to issue and sell to Purchaser any Proposed Securities) if the Board of Directors determines in making its electiongood faith and based on the reasonable advice of external counsel (such counsel to be a law firm possessing recognized expertise with respect to Laws in the applicable jurisdiction(s) at issue), to the extent permitted by Law after consultation with Purchaser, that the combination exercise of the actions contemplated by clauses Purchaser’s Gross-up Right (or any portion thereof) would or would reasonably be expected to (i) result in a materially adverse regulatory consequence to the Company or its Subsidiaries, (ii) violate any Laws or (iii) subject to compliance with the terms and conditions set forth in Section 4.4(e), require the Company to obtain shareholder approval in respect of the issuance of any Proposed Securities under the listing rules of the NYSE or any other securities exchange or any other Law; provided, however, that if the Company is relying on this Section 4.4(f), it must use reasonable best efforts to provide prior written notice to Purchaser at least ten (10) business days prior to the completion of the issuance of such securities, and shall discuss with Purchaser in good faith whether the offering of Proposed Securities can be structured without triggering the conditions set forth in clauses (i)-(iii) herein. (g) Notwithstanding anything herein to the contrary, if, in connection with exercising its Gross-up Right, Purchaser requests that Purchaser be issued, in whole or in part, Non-Voting Common Equivalent Stock in lieu of the Proposed Securities that are Voting Common Stock, then the Company shall reasonably cooperate with Purchaser to modify the proposed issuance of Proposed Securities to Purchaser to the extent permitted by Law; provided that if, following such reasonable cooperation, it is not permitted by Law for the issuance of Proposed Securities that are Voting Common Stock to be modified to accommodate such request, the Company shall only be obligated to issue and sell to Purchaser such number of shares of Voting Common Stock that Purchaser has indicated it is willing to purchase (and subject to the limitations contained in this Section 4.4). (h) Notwithstanding anything herein to the contrary, (i) if the Board of Directors reasonably determines that the Company is in need of emergency financing, the Company shall not be deemed to have breached this Section 4.4 if in connection with or promptly following (and no later than ten (10) business days after) the issuance or sale of any Proposed Securities in contravention of this Section 4.4, the Company offers to sell a portion of such Proposed Securities to Purchaser, so that, taking into account such previously-issued Proposed Securities, Purchaser shall have had the right to purchase or subscribe for Proposed Securities in a manner consistent with the allocation and other terms and upon the same economic and other terms provided for in this Section 4.4; and (ii) are not adequate to allow Buyer and its Affiliates to reach the Equalized Percentage, Buyer, acting directly or through its Affiliates, Purchaser shall have the no right to purchase from the Company newly issued shares; provided that, (A) to the extent that the approval of the Company’s shareholders is required in connection with such issuance, upon Buyer’s request the Company will convene a shareholders’ meeting to approve such issuance and (B) unless such meeting can be held within 90 days of Buyer’s request or if such meeting is held and approval is not obtained, Buyer and its Affiliates shall have the option of proceeding to make the purchases contemplated by clause (iv); and (iv) fourth, to the extent that the combination of the actions contemplated by clauses (i) through (iii) are not adequate to allow Buyer and its Affiliates to reach the Equalized Percentage, Buyer and its Affiliates shall have the right, subject to Applicable Law, to purchase in open market transactions or from third parties, the number of Voting Securities necessary to allow them to reach the Equalized Percentage. (d) If Buyer or its Affiliates purchase Treasury Stock or newly issued Common Stock pursuant to Section 2.04(c), the purchase price for such Treasury Stock or newly issued Common Stock will be the Prevailing Fair Market Value of the Common Stock on the date of issuance of newly issued Common Stock or purchase of Treasury Stock, as the case may be; provided that, to the extent that the event giving rise to Buyer’s and its Affiliates’ rights under Section 2.04(c) is the conversion of the PIERS Instruments, Buyer and its Affiliates shall be required to purchase such shares of Common Stock at the conversion price under the applicable PIERS Instruments. (e) If, at the time of any purchase by Buyer of Voting Proposed Securities pursuant to this Section 2.044.4 if, at the Voting Trustee shall hold any Voting Securitiesapplicable time, (A) Purchaser is not an “accredited investor” (as that term is defined in Rule 501 of the Buyer will cause Securities Act) and an “institutional account” (as that term is defined under FINRA 4512(c)), or (B) Purchaser is an underwriter within the Voting Trustee meaning of Section 2(a)(11) of the Securities Act. (i) Purchaser may elect to purchase the number of Voting Securities that is determined by multiplying the number of Voting Securities to be purchased by Buyer exercise its rights pursuant to this Section 2.04 by 4.4 directly or through on or more of its affiliates so long as such affiliate executes a fraction, joinder to this Agreement with the numerator of which is the number of Voting Securities held Company agreeing to be bound by the Voting Trustee immediately before such purchase obligations and the denominator of which is the total number of Voting Securities held by Buyer and its Affiliates (including the Voting Trustee) immediately before such purchaserestrictions applicable to Purchaser hereunder.

Gross Up Rights. (a) If at any time after Closing, the Company issues or proposes to issue any Voting Securities or any Participating Preferred Stock, whether (i) for financing, (ii) in connection with mergers and acquisitions, (iii) in connection with the exercise of Convertible Rights, (iv) upon the exercise of any option, warrant, stock appreciation right or other similar instrument granted to officers, directors, employees, consultants or others, (v) in the form of restricted shares or similar instruments, (vi) or otherwise, Buyer shall have the option and right to acquire such Voting Securities so that immediately after such issuance Buyer shall Beneficially Own the same Ownership Percentage of such Voting Securities as was Beneficially Owned by Buyer and its Affiliates before such issuance and to acquire its Ownership Percentage of any such Participating Preferred Stock in the manner described below; provided that any capital stock acquired by Buyer or its Affiliates in connection with any Required Purchase shall not be taken into account for purposes of the calculations required by this Section 2.04(a); and provided further that, in the case of any securities (except for any Participating Preferred Stock which are also Voting Securities) described in clause (ii) of the definition of Voting Securities, Buyer’s rights under this Section shall arise upon any conversion or exchange of such Voting Securities for securities entitled, in the ordinary course, to vote in the election of Directors of the Company, rather than upon the issuance thereof. (b) Prior to issuing any Voting Securities or Participating Preferred Stock (other than issuances pursuant to clauses (iii), (iv) and (v) of Section 2.04(a)), the Company shall provide Buyer with ten Business Days’ prior written notice (or if such notice period is not possible under the circumstances, such prior notice as is practicable) of the proposed issuance. Buyer, acting directly or through its Affiliates, shall have the right, exercisable by providing written notice to the Company of the exercise of its rights within ten days after receipt of the Company’s notice, to purchase for cash directly from the Company (i) up to a sufficient number of such Voting Securities so that, after giving effect to such issuance, Buyer and its Affiliates will Beneficially Own the same Ownership Percentage as was Beneficially Owned by Buyer and its Affiliates immediately prior to the issuance of such Voting Securities or (ii) its Ownership Percentage of such Participating Preferred Stock (or to maintain its Ownership Percentage of any class of Participating Preferred Stock previously issued by the Company and purchased by Buyer or its Affiliates). The purchase price for any Voting Securities purchased by Buyer or its Affiliates pursuant to this Section 2.04(b) will be (A) in the case of an issuance of Voting Securities or Participating Preferred Stock other than in connection with mergers and acquisitions, the lesser of (x) the Prevailing Fair Market Value of such Voting Securities or Participating Preferred Stock on the date of issuance thereof or (y) the price (including any assumed indebtedness which is part of the purchase price and valuing any non-cash consideration at Prevailing Fair Market Value) at which the Company issues such Voting Securities or Participating Preferred Stock to other shareholders or Third Parties and (B) in the case of an issuance of Voting Securities or Participating Preferred Stock in connection with any merger or acquisition the arithmetic average, weighted by reference to daily trading volume, of the closing prices of such Voting Securities or Participating Preferred Stock during the 30 trading day period ending immediately prior to the closing of such merger or acquisition. The Company shall provide such information, to the extent reasonably available, relating to any non-cash consideration as Buyer may reasonably request in order to evaluate any non-cash consideration paid in respect of any issuance pursuant to this Section 2.04(b)) . If, in connection with any issuance by the Company covered by this Section 2.04(b), Buyer gives notice of its intent to exercise its option under this Section 2.04(b) but has not purchased the securities subject thereto within 60 days thereafter for reasons not primarily related to actions or omissions of the Company or the absence of any approvals or consents or the taking of any other actions required to be taken under Applicable Law or the prohibition on purchasing such securities during such period imposed by applicable securities laws, Buyer shall be deemed to have waived its rights to purchase such securities under this Section 2.04 with respect to such issuance of Voting Securities or Participating Preferred Stock. (c) No later than 15 days after the end of each of its fiscal quarters, the Company shall give Buyer notice of the aggregate number of Voting Securities issued during the preceding fiscal quarter under clauses (iii), (iv) and (v) of Section 2.04(a)) . Within ten days of the receipt of such notice Buyer shall have the right to take or cause to be taken the following actions, in the following order of priorities, in order to ensure that, after giving effect to such actions, Buyer and its Affiliates will Beneficially Own the same Ownership Percentage as was Beneficially Owned by Buyer and its Affiliates immediately before the beginning of such fiscal quarter (the “Equalized Percentage”): (i) first, Buyer, acting directly or through its Affiliates, shall have a right to purchase from the Company the number of shares of Treasury Stock necessary to reach the Equalized Percentage; (ii) second, to the extent that the Company does not have available enough shares of Treasury Stock to permit Buyer and its Affiliates to reach the Equalized Percentage, the Company shall, unless prohibited by Applicable Law, and subject to the receipt of any required regulatory approval, use its reasonable best efforts to repurchase in the open market within 15 days after the delivery of the notice to Buyer, the number of shares necessary to allow Buyer and its Affiliates to achieve the Equalized Percentage after giving effect to any purchases pursuant to clause (i); (iii) third, at the Company’s reasonable election (provided that the Company shall have acted reasonably in making its election), to the extent that the combination of the actions contemplated by clauses (i) and (ii) are not adequate to allow Buyer and its Affiliates to reach the Equalized Percentage, Buyer, acting directly or through its Affiliates, shall have the right to purchase from the Company newly issued shares; provided that, (A) to the extent that the approval of the Company’s shareholders is required in connection with such issuance, upon Buyer’s request the Company will convene a shareholders’ meeting to approve such issuance and (B) unless such meeting can be held within 90 days of Buyer’s request or if such meeting is held and approval is not obtained, Buyer and its Affiliates shall have the option of proceeding to make the purchases contemplated by clause (iv); and (iv) fourth, to the extent that the combination of the actions contemplated by clauses (i) through (iii) are not adequate to allow Buyer and its Affiliates to reach the Equalized Percentage, Buyer and its Affiliates shall have the right, subject to Applicable Law, to purchase in open market transactions or from third parties, the number of Voting Securities necessary to allow them to reach the Equalized Percentage. (d) If Buyer or its Affiliates purchase Treasury Stock or newly issued Common Stock pursuant to Section 2.04(c), the purchase price for such Treasury Stock or newly issued Common Stock will be the Prevailing Fair Market Value of the Common Stock on the date of issuance of newly issued Common Stock or purchase of Treasury Stock, as the case may be; provided that, to the extent that the event giving rise to Buyer’s and its Affiliates’ rights under Section 2.04(c) is the conversion of the PIERS Instruments, Buyer and its Affiliates shall be required to purchase such shares of Common Stock at the conversion price under the applicable PIERS Instruments. (e) If, at the time of any purchase by Buyer of Voting Securities pursuant to this Section 2.04, the Voting Trustee shall hold any Voting Securities, the Buyer will cause the Voting Trustee to purchase the number of Voting Securities that is determined by multiplying the number of Voting Securities to be purchased by Buyer pursuant to this Section 2.04 by a fraction, the numerator of which is the number of Voting Securities held by the Voting Trustee immediately before such purchase and the denominator of which is the total number of Voting Securities held by Buyer and its Affiliates (including the Voting Trustee) immediately before such purchase.