Common use of Issuance of Common Stock at Lower Values Clause in Contracts

Issuance of Common Stock at Lower Values. If the Company shall, in a transaction to which SECTION 8(b) is inapplicable, issue or sell shares of Common Stock, or rights, options, warrants or convertible or exchangeable securities containing the right to subscribe for or purchase shares of Common Stock, at a price per share of Common Stock (determined in the case of such rights, options, warrants or convertible or exchangeable securities, by dividing (A) the total amount receivable by the Company in consideration of the issuance and sale of such rights, options, warrants or convertible or exchangeable securities, plus the total consideration, if-any, payable to the Company upon exercise, conversion or exchange thereof, by (B) the total number of shares of Common Stock covered by such rights, options, warrants or convertible or exchangeable securities) that is lower than the then Current Market Value per share of the Common Stock in effect immediately prior to such sale or issuance, then the Exercise Price of each Warrant shall be adjusted by multiplying such Exercise Price by a fraction, of which the numerator shall be (i) the number of shares of Common Stock outstanding on the record date established for the issuance of such rights, options, or warrants plus the number of shares of Common Stock which the aggregate consideration received (upon exercise of such rights, options or warrants) would purchase at the Current Market Price, and the denominator of which shall be the number of shares of Common Stock outstanding on the record date established for the issuance of such rights, options or warrants plus the number of additional shares of Common Stock issuable upon exercise thereof. Such adjustment shall be made successively whenever any such sale or issuance is made. In case the Company shall issue and sell shares of Common Stock or rights, options, warrants or convertible or exchangeable securities containing the right to subscribe for or purchase shares of Common Stock for a consideration consisting, in whole or in part, of property other than cash or its equivalent, then in determining the price per share of Common Stock and the "consideration" receivable by or payable to the Company for purposes of the first sentence of this SECTION 8(c), the Board of Directors of the Company shall determine, in good faith, the fair value of such property. In case the Company shall issue and sell rights, options, warrants or convertible or exchangeable securities containing the right to subscribe for or purchase shares of Common Stock, together with one or more other securities as part of a unit at a price per unit, then in determining the "price per share of Common Stock" and the "consideration" receivable by or payable to the Company for purposes of the first sentence of this SECTION 8(c), the Board of Directors of the Company shall determine, in good faith, the fair value of the rights, options, warrants or convertible or exchangeable securities then being sold as part of such unit. Any adjustment to the number of shares of Common Stock issuable upon exercise of all Warrants then outstanding made pursuant to this SECTION 8(C) shall be allocated among each Warrant then outstanding on a pro rata basis. The provisions of this SECTION 8(c) shall not apply (i) to shares issued pursuant to an employee stock option plan or similar plan providing for options or other similar rights to purchase shares of Common Stock, (ii) to issuances pursuant to incentive bonus plans or (iii) to shares issued in payment or settlement of any other equity-related award to employees.

Issuance of Common Stock at Lower Values. If In case the Company Bank shall, in a ---------------------------------------- transaction to in which SECTION 8(bSection 3.01(b) is inapplicable, issue or sell shares of Common Stock, or rights, options, warrants or convertible or exchangeable securities containing the right to subscribe for or purchase shares of Common Stock, at a price per share of Common Stock (determined in the case of such rights, options, warrants or convertible or exchangeable securities, by dividing (A) the total amount receivable by the Company Bank in consideration of the sale and issuance and sale of such rights, options, warrants or convertible or exchangeable securities, plus the total consideration, if-if any, payable to the Company upon exercise, conversion or exchange thereof, by (B) the total number of shares of Common Stock covered by such rights, options, warrants or convertible or exchangeable securities) that is lower than the then Current Market Value current market value per share of the Common Stock in effect immediately prior to such sale or issuanceissuance (as determined pursuant to paragraph (f) hereof), then the Exercise Price number of each Warrant shares of Common Stock thereafter issuable upon the exercise of all Warrants then outstanding shall be adjusted determined by multiplying such Exercise Price the number of shares of Common Stock theretofore issuable upon exercise of all Warrants then outstanding by a fraction, of which the numerator shall be (i) the number of shares of Common Stock outstanding on the record date established for the issuance of such rights, options, or warrants plus the number of shares of Common Stock which the aggregate consideration received (upon exercise of such rights, options or warrants) would purchase at the Current Market Price, and the denominator of which shall be the number of shares of Common Stock outstanding on the record date established for the of issuance of such shares of Common Stock or rights, options options, warrants or warrants convertible or exchangeable securities, plus the number of additional shares of Common Stock issuable offered for subscription or purchase or to be issued upon exercise thereof. Such adjustment conversion or exchange of such convertible or exchangeable securities and of which the denominator shall be made successively whenever the number of shares of Common Stock outstanding on the date of issuance of such shares of Common Stock or rights, options, warrants or convertible or exchangeable securities, plus the number of shares which the aggregate consideration to be received by the Bank in connection with such issuance would purchase at the then current market value per share of Common Stock. For the purposes of such adjustments, the shares of Common Stock which the holder of any such rights, options, warrants or convertible or exchangeable securities shall be entitled to subscribe for or purchase shall be deemed to be issued and outstanding as of the date of the sale and issuance of the rights, warrants or issuance is madeconvertible or exchangeable securities and the consideration received by the Bank therefor shall be deemed to be the consideration received by the Bank for such rights, options, warrants or convertible or exchangeable securities, plus the consideration or premiums stated in such rights, options, warrants or convertible or exchangeable securities to be paid for the shares of Common Stock covered thereby. In case the Company Bank shall issue and sell shares of Common Stock or rights, options, warrants or convertible or exchangeable securities containing the right to subscribe for or purchase shares of Common Stock for a consideration consisting, in whole or in part, of property other than cash or its equivalent, then in determining the "price per share of Common Stock Stock" and the "consideration" receivable by or payable to the Company Bank for purposes of the first sentence of this SECTION 8(cSection 3.01(c), the Board of Directors of the Company Bank shall determine, in good faith, the fair value of such property, and such determination shall be conclusive; provided, however, that if the Board of -------- ------- Directors of the Bank determines that the aggregate fair value of such property equals or exceeds $50,000,000, the Board of Directors shall have obtained the advice of a nationally recognized investment banking firm in support of such determination. In case the Company Bank shall issue and sell rights, options, warrants or convertible or exchangeable securities containing the right to subscribe for or purchase shares of Common Stock, together with one or more other securities as part of a unit at a price per unit, then in determining the "price per share of Common Stock" and the "consideration" receivable by or payable to the Company Bank for purposes of the first sentence of this SECTION 8(cSection 3.01(c), the Board of Directors of the Company Bank shall determine, in good faith, the fair value of the rights, options, warrants or convertible or exchangeable securities then being sold as part of such unit, and such determination shall be conclusive; provided, -------- however, that if the Board of Directors of the Bank determines that the ------- aggregate fair value of such securities equals or exceeds $50,000,000, the Board of Directors shall have obtained the advice of a nationally recognized investment banking firm in support of such determination. Any adjustment to the number of shares of Common Stock issuable upon exercise of all Warrants then outstanding made pursuant to this SECTION 8(CSection 3.01(c) shall be allocated among each Warrant then outstanding on a pro rata basis. The provisions of this SECTION 8(c) shall not apply (i) to shares issued pursuant to an employee stock option plan or similar plan providing for options or other similar rights to purchase shares of Common Stock, (ii) to issuances pursuant to incentive bonus plans or (iii) to shares issued in payment or settlement of any other equity-related award to employees.

Issuance of Common Stock at Lower Values. If In case the Company shall, ---------------------------------------- in a transaction to in which SECTION 8(bSection 7.1(b) is inapplicable, issue or sell shares of Common Stock, or rights, options, warrants or convertible or exchangeable securities containing the right to subscribe for or purchase shares of Common Stock, at a price per share of Common Stock (determined in the case of such rights, options, warrants or convertible or exchangeable securities, by dividing (A) the total amount receivable by the Company in consideration of the issuance and sale of such rights, options, warrants or convertible or exchangeable securities, plus the total consideration, if-if any, payable to the Company upon exercise, conversion or exchange thereof, by (B) the total number of shares of Common Stock covered by such rights, options, warrants or convertible or exchangeable securities) that is lower than the then Current Market Value per share of the Common Stock in effect immediately prior to such sale or issuance, then the Exercise Price number of each Warrant shares of Common Stock thereafter issuable upon the exercise of all Warrants then outstanding shall be adjusted determined by multiplying such Exercise Price by a fraction, of which the numerator shall be (i) adding the number of shares of Common Stock outstanding on the record date established for the issuance of such rights, options, or warrants plus the number of shares of Common Stock which the aggregate consideration received (theretofore issuable upon exercise of such rightsall Warrants then outstanding to the product of (x) the Cheap Stock Issued, options or warrantsmultiplied by (y) would purchase at the Current Market Price, and the denominator of which shall be the number of shares of Common Stock outstanding on the record date established for the issuance of such rights, options or warrants plus the number of additional shares of Common Stock issuable upon exercise thereofOwnership Ratio. Such adjustment shall be made successively whenever any such sale or issuance is made. For purposes of this Section 7.1(c), (i) the "Cheap Stock Issued" shall be the number of additional shares of any Common Stock issued or offered by the Company for subscription or purchase as described above minus the number of shares of Common Stock that the aggregate offering price of the total number of shares of Common Stock so offered would purchase at the then Current Market Value per share of Common Stock and (ii) the "Ownership Ratio" shall be a fraction, the numerator of which shall be the number of shares of Common Stock theretofore issuable upon exercise of all Warrants then outstanding, and the denominator of which shall be the fully diluted shares of Common Stock then outstanding on the date of issuance of such Common Stock or such rights, options, warrants or convertible or exchangeable securities minus the number of shares of Common Stock theretofore issuable upon the exercise of all Warrants then outstanding. For the purposes of such adjustments, the shares of Common Stock which the holder of any such rights, options, warrants or convertible or exchangeable securities shall be entitled to subscribe for or purchase shall be deemed to be issued and outstanding as of the date of the sale and issuance of the rights, warrants or convertible or exchangeable securities and the consideration received by the Company therefor shall be deemed to be the consideration received by the Company for such rights, options, warrants or convertible or exchangeable securities, plus the consideration or premiums stated in such rights, options, warrants or convertible or exchangeable securities to be paid for the shares of Common Stock covered thereby. In case the Company shall issue and sell shares of Common Stock or rights, options, warrants or convertible or exchangeable securities containing the right to subscribe for or purchase shares of Common Stock for a consideration consisting, in whole or in part, of property consideration other than cash or its equivalent, then in determining the "price per share of Common Stock Stock" and the "consideration" receivable by or payable to the Company for purposes of the first sentence of this SECTION 8(cSection 7.1(c), the Board of Directors of the Company shall determine, in good faith, the fair value of such propertyconsideration. In case the Company shall issue and sell rights, options, warrants or convertible or exchangeable securities containing the right to subscribe for or purchase shares of Common Stock, together with one or more other securities as part of a unit at a price per unit, then in determining the "price per share of Common Stock" and the "consideration" receivable by or payable to the Company for purposes of the first sentence of this SECTION 8(cSection 7.1(c), the Board of Directors of the Company shall determine, in good faith, the fair value of the rights, options, warrants or convertible or exchangeable securities then being sold as part of such unit. Any adjustment to the number of shares of Common Stock issuable upon exercise of all Warrants then outstanding made pursuant to this SECTION 8(CSection 7.1(c) shall be allocated among each Warrant then outstanding on a pro rata basis. The provisions of this SECTION 8(cSection 7.1(c) shall not apply to (i) shares issued pursuant to employee stock options, warrants or upon conversion of the Company's 6.5% Convertible Subordinated Debentures, in each case outstanding on the date hereof, and (ii) shares issued pursuant to an employee stock option plan or similar plan providing for options or other similar rights to purchase shares of Common Stock, (ii) to or issuances pursuant to incentive bonus plans plans) covering not in the aggregate in excess of the lesser of 400,000 shares of Common Stock per year or (iii) to 2.6% of the fully diluted shares issued in payment or settlement of any other equity-related award to employeesCommon Stock then outstanding at the end of the most recent fiscal quarter of each year.

Issuance of Common Stock at Lower Values. If In case the Company Corporation shall, in a transaction to which SECTION 8(bSection 5(h)(i) is inapplicableinapplicable (and, in any event, other than upon conversion of Series A Preferred Stock or Series D Preferred Stock, or upon exercise of any warrants or employee stock options that were outstanding on the date of issuance of the Series D Preferred Stock or pursuant to contractual commitments to which the Corporation was bound on such date), issue or sell shares of Common Stock, or rights, options, warrants or convertible or exchangeable securities containing the right to subscribe for or purchase shares of Common Stock, at a price per share of Common Stock (determined determined, in the case of such rights, options, warrants or convertible or exchangeable securities, by dividing (A) the total amount receivable by the Company Corporation in consideration of the issuance and sale of such rights, options, warrants or convertible or exchangeable securities, plus the total consideration, if-any, consideration payable to the Company Corporation upon exercise, conversion or exchange thereof, by (B) the total number of shares of Common Stock covered by such rights, options, warrants or convertible or exchangeable securities) that is lower (at the date of such sale or issuance) than the then Current Market Value Price per share of the Common Stock in effect immediately prior to such sale or issuanceissuance or for no consideration, then in each case the Exercise Price number of each Warrant shares of Common Stock thereafter issuable upon the conversion of the shares of Series D Preferred Stock shall be adjusted increased in a manner determined by multiplying such Exercise Price the number of shares of Common Stock theretofore issuable upon the conversion of all shares of Series D Preferred Stock by a fraction, of which the numerator shall be (i) the number of shares of Common Stock outstanding on immediately prior to the record date established sale or issuance, plus the number of additional shares of Common Stock offered for the issuance subscription or purchase or to be issued upon conversion or exchange of such rightsconvertible or exchangeable securities, options, and of which the denominator shall be the number of shares of Common Stock outstanding immediately prior to the sale or warrants issuance plus the number of shares of Common Stock which the aggregate consideration to be received by the Corporation (upon exercise of as defined in the following paragraph) in connection with such rights, options sale or warrants) issuance would purchase at the then Current Market Price, and Price per share of Common Stock. For the denominator purpose of which such adjustments the "aggregate consideration to be received by the Corporation" therefore shall be deemed to be the number of consideration received by the Corporation for such rights, options, warrants or convertible or exchangeable securities plus any consideration or premiums stated in such rights, options, warrants or convertible or exchangeable securities to be paid for the shares of Common Stock outstanding on the record date established for the issuance of such rights, options or warrants plus the number of additional shares of Common Stock issuable upon exercise thereof. Such adjustment shall be made successively whenever any such sale or issuance is madecovered thereby. In case the Company Corporation shall issue and or sell shares of Common Stock or rights, options, warrants or convertible or exchangeable securities containing the right to subscribe for or purchase shares of Common Stock for a consideration consisting, in whole or in part, of property other than cash or its equivalent, then in determining the "price per share of Common Stock Stock" and the "consideration" receivable by or payable to the Company Corporation for purposes of the first sentence of this SECTION 8(cSections 5(h)(ii) and 5(h)(iii), the Board of Directors of the Company Corporation shall determine, in good faith, the fair value of such property. In case the Company Corporation shall issue and sell rights, options, warrants or convertible or exchangeable securities containing the right to subscribe for or purchase shares of Common Stock, together with one or more other securities as part of a unit at a price per unit, then in determining the "price per share of Common Stock" and the "consideration" receivable by or payable to the Company Corporation for purposes of the first sentence of this SECTION 8(cSections 5(h)(ii) and 5(h)(iii), the Board of Directors of the Company Corporation shall determine, in good faith, the fair value of the rights, options, warrants or convertible or exchangeable securities then being sold as part of such unit. Any adjustment to increase of the number of shares of Common Stock issuable upon exercise conversion of all Warrants then outstanding made shares of Series D Preferred Stock pursuant to this SECTION 8(CSection 5(h)(iii) shall be allocated among each Warrant then outstanding such Series D Preferred Stock on a pro rata basis. The provisions of this SECTION 8(c) shall not apply (i) to shares issued pursuant to an employee stock option plan or similar plan providing for options or other similar rights to purchase shares of Common Stock, (ii) to issuances pursuant to incentive bonus plans or (iii) to shares issued in payment or settlement of any other equity-related award to employees.

Issuance of Common Stock at Lower Values. If In case the Company Corporation shall, in a transaction to which SECTION 8(bSection 5(h)(i) is inapplicableinapplicable (and, in any event, other than upon conversion of Series A Preferred Stock, Series B Junior Convertible Preferred Stock or the Corporation's Common Stock Equivalent Convertible Preferred Stock, or upon exercise of any warrants or employee stock options that were outstanding on the Initial Issuance Date or pursuant to contractual commitments to which the Corporation was bound on the Initial Issuance Date), issue or sell shares of Common Stock, or rights, options, warrants or convertible or exchangeable securities containing the right to subscribe for or purchase shares of Common Stock, at a price per share of Common Stock (determined determined, in the case of such rights, options, warrants or convertible or exchangeable securities, by dividing (A) the total amount receivable by the Company Corporation in consideration of the issuance and sale of such rights, options, warrants or convertible or exchangeable securities, plus the total consideration, if-any, consideration payable to the Company Corporation upon exercise, conversion or exchange thereof, by (B) the total number of shares of Common Stock covered by such rights, options, warrants or convertible or exchangeable securities) that is lower (at the date of such sale or issuance) than the then Current Market Value Price per share of the Common Stock in effect immediately prior to such sale or issuanceissuance or for no consideration, then in each case the Exercise Price number of each Warrant shares of Common Stock thereafter issuable upon the conversion of the Then-Convertible Shares shall be adjusted increased in a manner determined by multiplying such Exercise Price the number of shares of Common Stock theretofore issuable upon the conversion of all Then-Convertible Shares by a fraction, of which the numerator shall be (i) the number of shares of Common Stock outstanding on immediately prior to the record date established sale or issuance, plus the number of additional shares of Common Stock offered for the issuance subscription or purchase or to be issued upon conversion or exchange of such rightsconvertible or exchangeable securities, options, and of which the denominator shall be the number of shares of Common Stock outstanding immediately prior to the sale or warrants issuance plus the number of shares of Common Stock which the aggregate consideration to be received by the Corporation (upon exercise of as defined in the following paragraph) in connection with such rights, options sale or warrants) issuance would purchase at the then Current Market Price, and Price per share of Common Stock. For the denominator purpose of which such adjustments the "aggregate consideration to be received by the Corporation" therefor shall be deemed to be the number of consideration received by the Corporation for such rights, options, warrants or convertible or exchangeable securities plus any consideration or premiums stated in such rights, options, warrants or convertible or exchangeable securities to be paid for the shares of Common Stock outstanding on the record date established for the issuance of such rights, options or warrants plus the number of additional shares of Common Stock issuable upon exercise thereof. Such adjustment shall be made successively whenever any such sale or issuance is madecovered thereby. In case the Company Corporation shall issue and or sell shares of Common Stock or rights, options, warrants or convertible or exchangeable securities containing the right to subscribe for or purchase shares of Common Stock for a consideration consisting, in whole or in part, of property other than cash or its equivalent, then in determining the price per share of Common Stock and the "consideration" receivable by or payable to the Company for purposes of the first sentence of this SECTION 8(c), the Board of Directors of the Company shall determine, in good faith, the fair value of such property. In case the Company shall issue and sell rights, options, warrants or convertible or exchangeable securities containing the right to subscribe for or purchase shares of Common Stock, together with one or more other securities as part of a unit at a price per unit, then in determining the "price per share of Common Stock" and the "consideration" receivable by or payable to the Company for purposes of the first sentence of this SECTION 8(c), the Board of Directors of the Company shall determine, in good faith, the fair value of the rights, options, warrants or convertible or exchangeable securities then being sold as part of such unit. Any adjustment to the number of shares of Common Stock issuable upon exercise of all Warrants then outstanding made pursuant to this SECTION 8(C) shall be allocated among each Warrant then outstanding on a pro rata basis. The provisions of this SECTION 8(c) shall not apply (i) to shares issued pursuant to an employee stock option plan or similar plan providing for options or other similar rights to purchase shares of Common Stock, (ii) to issuances pursuant to incentive bonus plans or (iii) to shares issued in payment or settlement of any other equity-related award to employees.of