Common use of Insufficient Preferred Stock Clause in Contracts

Insufficient Preferred Stock. There shall not be sufficient treasury shares or authorized but unissued and unreserved Preferred Stock (or Common Stock of the Company as provided for in Section 11(a)(ii) hereof) to permit the exercise in full of all the outstanding Rights in accordance with the foregoing subparagraph (ii) and the Rights become so exercisable, notwithstanding any other provision of this Agreement, to the extent necessary and permitted by applicable law, each Right shall thereafter represent the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement: (A) shares (whether whole or fractional) of Common Stock of the Company that may permissibly be issued; (B) a number (whether whole or fractional) of other equity securities of the Company (or in the discretion of the Board of Directors of the Company, debt) including, but not limited to, whole or fractional shares of preferred stock of the Company other than the Preferred Stock (such alternative securities of the Company being referred to as "Capital Stock Equivalents"); or (C) some combination of (A), (B) and the Preferred Stock, that, in the case of (A), (B) or (C), the Board of Directors of the Company has determined to have the same aggregate current market value as determined based upon advice of a nationally recognized investment banking firm selected by the Independent Directors and/or pursuant to Section 11(d)(i) and (ii) hereof, to the extent applicable as the aggregate value of the Preferred Stock if there were available for issuance sufficient shares of Preferred Stock; PROVIDED, HOWEVER, if there are unavailable sufficient Preferred Stock or Capital Stock Equivalents, then the Company shall, to the extent permitted by applicable law, promptly take all such action as may be necessary to authorize additional Preferred Stock or Capital Stock Equivalents for issuance upon exercise of the Rights, including the calling of a meeting of stockholders; and provided, further, that if the Company is unable to cause sufficient Preferred Stock or Capital Stock Equivalents to be available for issuance upon exercise in full of all of the outstanding Rights, then each Right shall thereafter represent the right to receive the Adjusted Number of Shares upon exercise of the Adjusted Purchase Price (as such terms are hereinafter defined). As used herein, the term "Adjusted Number of Shares" shall be equal to that number of whole or fractional shares of Preferred Stock (or Capital Stock Equivalents) equal to the product of (A) the number of Adjustment Shares and (B)

Insufficient Preferred Stock. There shall not be sufficient treasury shares or authorized but unissued and unreserved Preferred Stock (or Common Stock of the Company as provided for in Section SECTION 11(a)(ii) hereof) to permit the exercise in full of all the outstanding Rights in accordance with the foregoing subparagraph (ii) and the Rights become so exercisable, notwithstanding any other provision of this Agreement, to the extent necessary and permitted by applicable law, each Right shall thereafter represent the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement: (A) shares (whether whole or fractional) of Common Stock of the Company that may permissibly be issued; (B) a number (whether whole or fractional) of other equity securities of the Company (or in the discretion of the Board of Directors of the Company, debt) including, but not limited to, whole or fractional shares of preferred stock of the Company other than the Preferred Stock (such alternative securities of the Company being referred to as "Capital Stock EquivalentsCAPITAL STOCK EQUIVALENTS"); or (C) some combination of (A), (B) and the Preferred Stock, that, in the case of (A), (B) or (C), the Board of Directors of the Company has determined to have the same aggregate current market value as determined based upon advice of a nationally recognized investment banking firm selected by a majority of the Independent Directors Board and/or pursuant to Section SECTION 11(d)(i) and AND (ii) hereof, to the extent applicable as the aggregate value of the Preferred Stock if there were available for issuance sufficient shares of Preferred Stock; PROVIDED, HOWEVER, if there are unavailable sufficient Preferred Stock or Capital Stock Equivalents, then the Company shall, to the extent permitted by applicable law, promptly take all such action as may be necessary to authorize additional Preferred Stock or Capital Stock Equivalents for issuance upon exercise of the Rights, including the calling of a meeting of stockholders; and providedPROVIDED, furtherFURTHER, that if the Company is unable to cause sufficient Preferred Stock or Capital Stock Equivalents to be available for issuance upon exercise in full of all of the outstanding Rights, then each Right shall thereafter represent the right to receive the Adjusted Number of Shares upon exercise of the Adjusted Purchase Price (as such terms are hereinafter defined). As used herein, the term "Adjusted Number of SharesADJUSTED NUMBER OF SHARES" shall be equal to that number of whole or fractional shares of Preferred Stock (or Capital Stock Equivalents) equal to the product of (A) the number of Adjustment Shares and (B) a fraction, the numerator of which is the number of Shares of Preferred Stock (or Capital Stock Equivalents) available for issuance upon exercise of the Rights and the denominator of which is the aggregate number of Adjustment Shares otherwise issuable upon exercise in full of all Rights (assuming there were a sufficient number of shares of Preferred Stock (or Capital Stock Equivalents as the case may be) available) (such fraction being referred to as the "PRORATION FACTOR"). The "ADJUSTED PURCHASE PRICE" shall mean the product of the Purchase Price and the Proration Factor. The Board of Directors may, but shall not be required to, establish procedures to allocate the right to receive Shares of Preferred Stock and other Capital Stock Equivalents upon exercise of the Rights among holders of Rights.

Insufficient Preferred Stock. There shall not be sufficient treasury shares or authorized but unissued and unreserved Preferred Stock (or Common Stock of the Company as provided for in Section 11(a)(ii) hereof) to permit the exercise in full of all the outstanding Rights in accordance with the foregoing subparagraph (ii) and the Rights become so exercisable, notwithstanding any other provision of this Agreement, to the extent necessary and permitted by applicable law, each Right shall thereafter represent the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement: (A) shares (whether whole or fractional) of Common Stock of the Company that may permissibly be issued; (B) a number (whether whole or fractional) of other equity securities of the Company (or in the discretion of the Board of Directors of the Company, debt) including, but not limited to, whole or fractional shares of preferred stock of the Company other than the Preferred Stock (such alternative securities of the Company being referred to as "“Capital Stock Equivalents"”); or (C) some combination of (A), (B) and the Preferred Stock, that, in the case of (A), (B) or (C), the Board of Directors of the Company has determined to have the same aggregate current market value as determined based upon advice of a nationally recognized investment banking firm selected by the Independent Directors and/or pursuant to Section 11(d)(i) and (ii) hereof, to the extent applicable as the aggregate value of the Preferred Stock if there were available for issuance sufficient shares of Preferred Stock; PROVIDEDprovided, HOWEVERhowever, if there are unavailable sufficient Preferred Stock or Capital Stock Equivalents, then the Company shall, to the extent permitted by applicable law, promptly take all such action as may be necessary to authorize additional Preferred Stock or Capital Stock Equivalents for issuance upon exercise of the Rights, including the calling of a meeting of stockholders; and provided, further, that if the Company is unable to cause sufficient Preferred Stock or Capital Stock Equivalents to be available for issuance upon exercise in full of all of the outstanding Rights, then each Right shall thereafter represent the right to receive the Adjusted Number of Shares upon exercise of the Adjusted Purchase Price (as such terms are hereinafter defined). As used herein, the term "“Adjusted Number of Shares" ” shall be equal to that number of whole or fractional shares of Preferred Stock (or Capital Stock Equivalents) equal to the product of (A) the number of Adjustment Shares and (B) a fraction, the numerator of which is the number of Shares of Preferred Stock (or Capital Stock Equivalents) available for issuance upon exercise of the Rights and the denominator of which is the aggregate number of Adjustment Shares otherwise issuable upon exercise in full of all Rights (assuming there were a sufficient number of shares of Preferred Stock (or Capital Stock Equivalents as the case may be) available) (such fraction being referred to as the “Proration Factor”). The “Adjusted Purchase Price” shall mean the product of the Purchase Price and the Proration Factor. The Board of Directors may, but shall not be required to, establish procedures to allocate the right to receive Shares of Preferred Stock and other Capital Stock Equivalents upon exercise of the Rights among holders of Rights.

Insufficient Preferred Stock. There In the event that there shall not be sufficient treasury shares or authorized but unissued and unreserved Preferred Stock (or Common Stock of the Company as provided for in Section 11(a)(ii) hereof) to permit the exercise in full of all the outstanding Rights in accordance with the foregoing subparagraph (ii) and the Rights become so exercisable, notwithstanding any other provision of this Agreement, to the extent necessary and permitted by applicable law, each Right shall thereafter represent the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement: (A) shares (whether whole or fractional) of Common Stock of the Company that may permissibly be issued; (B) a number (whether whole or fractional) of other equity securities of the Company (or in the discretion of the Board of Directors of the Company, debt) including, but not limited to, whole or fractional shares of preferred stock of the Company other than the Preferred Stock (such alternative securities of the Company being referred to as "“Capital Stock Equivalents"”); or (C) some combination of (A), (B) and the Preferred Stock, that, in the case of (A), (B) or (C), the Board of Directors of the Company has determined to have the same aggregate current market value as determined based upon advice of a nationally recognized investment banking firm selected by the Independent Directors and/or pursuant to Section 11(d)(i) and (ii) hereof, to the extent applicable as the aggregate value of the Preferred Stock if there were available for issuance sufficient shares of Preferred Stock; PROVIDEDprovided, HOWEVERhowever, if there are unavailable sufficient Preferred Stock or Capital Stock Equivalents, then the Company shall, to the extent permitted by applicable law, promptly take all such action as may be necessary to authorize additional Preferred Stock or Capital Stock Equivalents for issuance upon exercise of the Rights, including the calling of a meeting of stockholders; and provided, further, that if the Company is unable to cause sufficient Preferred Stock or Capital Stock Equivalents to be available for issuance upon exercise in full of all of the outstanding Rights, then each Right shall thereafter represent the right to receive the Adjusted Number of Shares upon exercise of the Adjusted Purchase Price (as such terms are hereinafter defined). As used herein, the term "“Adjusted Number of Shares" ” shall be equal to that number of whole or fractional shares of Preferred Stock (or Capital Stock Equivalents) equal to the product of (A) the number of Adjustment Shares and (B) a fraction, the numerator of which is the number of Shares of Preferred Stock (or Capital Stock Equivalents) available for issuance upon exercise of the Rights and the denominator of which is the aggregate number of Adjustment Shares otherwise issuable upon exercise in full of all Rights (assuming there were a sufficient number of shares of Preferred Stock (or Capital Stock Equivalents as the case may be) available) (such fraction being referred to as the “Proration Factor”). The “Adjusted Purchase Price” shall mean the product of the Purchase Price and the Proration Factor. The Board of Directors may, but shall not be required to, establish procedures to allocate the right to receive Shares of Preferred Stock and other Capital Stock Equivalents upon exercise of the Rights among holders of Rights.