Common use of Other Dilutive Events Clause in Contracts

Other Dilutive Events. In case any event shall occur as to which the other provisions of this Section 4 are not strictly applicable but as to which the failure to make any adjustment would not fairly protect the purchase rights represented by this Warrant in accordance with the essential intent and principles hereof (including, without limitation, the issuance of securities other than Common Stock which have the right to participate in distributions to the holders of Common Stock, the granting of "phantom stock" rights or "stock appreciation rights" or the repurchase of outstanding shares of Common Stock, Convertible Securities or Stock Purchase Rights for a purchase price exceeding the fair market value thereof), then, in each such case, the Majority Warrant Holders may select an independent investment banking firm of nationally recognized standing and reasonably acceptable to the Company to make a determination as to the adjustment, if any, required to be made on a basis consistent with the essential intent and principles established herein as a result of such event in order to preserve the purchase rights represented by the Warrants. If the investment bank selected by the Majority Warrant Holders is not reasonably acceptable to the Company, and the Company and the Majority Warrant Holders cannot agree on a mutually acceptable investment bank, then the Company and the Majority Warrant Holders shall each choose one such investment bank and the respective chosen firms shall jointly select a third investment bank, which shall make the determination. The Company shall pay the costs and fees of each such investment bank (including any such investment bank selected by the Majority Warrant Holders), and the decision of the investment bank making such determination shall be final and binding on the Company and all affected holders of Warrants or Warrant Stock. Promptly after receipt of the opinion of such investment bank as to any such required adjustments, the Company shall take any actions necessary to implement same.

Other Dilutive Events. In case any event shall occur as to which the other provisions of this Section 4 are not strictly applicable but as to which the failure to make any adjustment would not fairly protect the purchase rights represented repre- sented by this Warrant in accordance with the essential intent and principles hereof (including, without limitation, the issuance of securities other than Common Stock which have the right to participate in distributions to the holders of Common Stock, the granting of "phantom stock" rights or "stock appreciation rights" or the repurchase of outstanding shares of Common Stock, Convertible Securities or Stock Purchase Rights for a purchase price exceeding the fair market value thereof), then, in each such case, the Majority Warrant Holders may select an independent investment banking firm of nationally recognized standing and reasonably acceptable to the Company to make a determination as to the adjustment, if any, required to be made on a basis consistent with the essential intent and principles established herein as a result of such event in order to preserve the purchase rights represented by the Warrants. If the investment bank selected by the Majority Warrant Holders is not reasonably acceptable to the Company, and the Company and the Majority Warrant Holders cannot agree on a mutually acceptable investment bank, then the Company and the Majority Warrant Holders shall each choose one such investment bank and the respective chosen firms shall jointly select a third investment bank, which shall make the determination. The Company shall pay the costs and fees of each such investment bank (including any such investment bank selected by the Majority Warrant Holders), and the decision of the investment bank making such determination shall be final and binding on the Company and all affected holders of Warrants or Warrant Stock. Promptly after receipt of the opinion of such investment bank as to any such required adjustments, the Company shall take any actions necessary to implement same.

Other Dilutive Events. In case any event shall occur as to which the other provisions of this Section 4 5 are not strictly applicable but as to which the failure to make any adjustment relating thereto would not fairly protect the purchase rights represented by this Warrant in accordance with the essential intent and principles hereof (including, without limitation, the issuance of securities other than Common Stock which have the right to participate in distributions to the holders of Common Stock, the granting of "phantom stock" rights or "stock appreciation rights" or the repurchase of outstanding shares of Common Stock, Convertible Securities or Stock Purchase Rights for a purchase price exceeding the fair market value thereof)this Section 5, then, in each such case, the Majority Company shall immediately make all adjustments necessary to preserve, without dilution, the purchase rights represented by this Warrant Holders may select an independent investment banking firm of nationally recognized standing and reasonably acceptable to the Company to make a determination as to the adjustment, if any, required to be made on a basis consistent with the essential intent and principles established herein as in this Section 5 and shall also immediately appoint a result firm of independent certified public accountants of recognized national standing (which may be the regular auditors of the Company if they satisfy such event in order to preserve standard), which shall give their opinion that such adjustment, if any, preserves, without dilution, the purchase rights represented by this Warrant on a basis consistent with the Warrantsintent and principles established in this Section 5. If Upon receipt of such opinion, the investment bank selected by the Majority Warrant Holders is not reasonably acceptable Company will immediately deliver a copy thereof to the Company, and the Company and the Majority Warrant Holders cannot agree on a mutually acceptable investment bank, then the Company and the Majority Warrant Holders shall each choose one such investment bank and the respective chosen firms shall jointly select a third investment bank, which shall make the determinationHolder of this Warrant. The Company shall pay not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the costs and fees observance or performance of each such investment bank (including any such investment bank selected by of the Majority Warrant Holders)terms of this Warrant, and will at all times in good faith assist in carrying out all of such terms and in the decision taking of all such actions as may be necessary or appropriate in order to protect the rights of the investment bank making such determination shall be final and binding on Holder of this Warrant against dilution or other impairment. Without limiting the Company and all affected holders of Warrants or Warrant Stock. Promptly after receipt generality of the opinion of such investment bank as to any such required adjustmentsforegoing, the Company shall (i) will not permit the par value of any shares of stock receivable upon the exercise of this Warrant to exceed the amount payable therefor upon such exercise, (ii) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of stock on the exercise of the Warrants from time to time outstanding, and (iii) will not take any actions necessary to implement sameaction that results in any adjustment of the Exercise Price if the total number of shares of Common Stock issued or issuable after such action, upon the exercise of all of the Warrants, would exceed the total number of shares of Common Stock then authorized by the Company's certificate of incorporation and available for the purpose of issuance upon such exercise.

Other Dilutive Events. In case any event shall occur as to which the other provisions of this Section 4 are not strictly applicable but as to which the failure to make any adjustment would not fairly protect the purchase rights represented by this Warrant in accordance with the essential intent and principles hereof as determined in good faith by the Company's Board of Directors (including, without limitation, the issuance of equity securities (other than Common Stock which have as specifically provided in Sections 4.1, 4.2, 4.3, 4.4 and 4.6), the right distribution to participate in distributions to the all holders of Common StockStock of evidences of indebtedness, cash or other property (other than cash dividends paid in the ordinary course of business), the granting of "phantom stock" rights or "stock appreciation rights" or the repurchase of outstanding shares of Common Stock, Convertible Securities or Stock Purchase Rights for a purchase price exceeding Fair Value; PROVIDED, HOWEVER, that the fair market value thereofCompany shall be permitted to effect (i) a self tender offer of Common Stock up to 10% of the Fully Diluted Outstanding Common Stock at a price not to exceed Fair Value on the date the self tender offer is first publicly announced by the Company and (ii) a redemption of Convertible Securities in accordance with the terms of such instrument as in effect on the date hereof), then, in each such case, the Majority Warrant Holders may select an independent investment banking firm of nationally recognized standing and reasonably acceptable to the Company to make a determination as to the adjustment, if any, required to be made on a basis consistent with the essential intent and principles established herein as a result of such event in order to preserve the purchase rights represented by the Warrants. If the investment bank selected by the Majority Warrant Holders is not reasonably acceptable to the Company, and the Company and the Majority Warrant Holders cannot agree on a mutually acceptable investment bank, then the Company and the Majority Warrant Holders shall each choose one such investment bank and the respective chosen firms shall jointly select a third investment bank, which shall make the determination. The Company Company, on the one hand, and all affected holders of Warrants or Warrant Stock, on the other hand, shall each pay 50% of the costs and fees of each such investment bank (including any the holders of Warrants and Warrant Stock shall agree among themselves the pro rata allocation of such investment bank selected by the Majority Warrant Holderscosts and expenses), and the decision of the investment bank making such determination shall be final and binding on the Company and all affected holders of Warrants or Warrant Stock. Promptly after receipt by the Company of the opinion of such investment bank as to any such required adjustments, the Company shall take any actions necessary to implement same.

Other Dilutive Events. (a) In case any event shall occur as to which the other provisions of this Section 4 3 are not strictly applicable applicable, but as to which the failure to make any adjustment would not fairly protect the purchase rights represented by this the Warrant in accordance with the essential intent and principles hereof (including, without limitation, the issuance of securities other than Common Stock which have the right to participate in distributions to the holders of Common Stock, the granting of "phantom stock" rights or "stock appreciation rights" or the repurchase of outstanding shares of Common Stock, Convertible Securities or Stock Purchase Rights for a purchase price exceeding the fair market value thereof)this Section 3, then, in each such case, the Majority Warrant Holders may select an independent investment banking firm of nationally recognized standing and reasonably acceptable to the Company to make a determination as to shall determine the adjustment, if any, required to be made on a basis consistent with the essential intent and principles established herein as a result of such event in order this Section 3 hereof necessary to preserve without dilution the purchase rights represented by the Warrants. If the investment bank selected by the Majority Warrant Holders is not reasonably acceptable Warrant. (b) Anything in this Section 3 to the Company, and the Company and the Majority Warrant Holders cannot agree on a mutually acceptable investment bank, then the Company and the Majority Warrant Holders shall each choose one such investment bank and the respective chosen firms shall jointly select a third investment bank, which shall make the determination. The Company shall pay the costs and fees of each such investment bank (including any such investment bank selected by the Majority Warrant Holders), and the decision of the investment bank making such determination shall be final and binding on the Company and all affected holders of Warrants or Warrant Stock. Promptly after receipt of the opinion of such investment bank as to any such required adjustmentscontrary notwithstanding, the Company shall take be entitled, but shall not be required, to make such changes in the Exercise Price, in addition to those required by this Section 3, as it in its discretion shall determine to be advisable in order that any actions necessary dividend or distribution in shares of Common Stock, subdivision, reclassification or combination of shares of Common Stock, issuance of rights, options or warrants to implement samepurchase Common Stock or distribution of shares of stock other than Common Stock, evidences of indebtedness or assets (other than distributions in cash out of retained earnings) referred to hereinabove in this Section 3, hereafter made by the Company to the holders of its Common Stock shall not be taxable to them, provided, however, that this would not result in a constructive distribution under Section 305 of the Internal Revenue Code of 1986, as amended, to the Holder. (c) If after the date hereof, any capital reorganization or reclassification of the Common Stock of the Company, or consolidation or merger of the Company with another corporation (other than covered by Section 3.1) or the sale of all or substantially all of its assets to another corporation or other similar event shall be effected (any such event a "Merger Event"), then as a condition of such Merger Event, lawful, fair and adequate provision shall be made whereby the Holder shall have the right to purchase and receive after the Merger Event in lieu of the Common Stock of the Company purchasable and receivable upon the exercise of the Warrant, such shares of stock or other securities or assets as may be issuable or payable with respect to or in exchange for the number of shares of Common Stock immediately theretofore purchasable and receivable upon the exercise of the Warrant, had such Merger Event not taken place. To the extent the consideration to be received by the Holder as a result of a Merger Event consists of securities in the surviving entity such surviving entity shall execute and deliver to the Holder a substitute Warrant granting the Holder the right to receive upon exercise thereof the kind and amount of securities receivable by a holder of the number of shares of Common Stock of the Company for which such Warrant might have been exercised immediately prior to such Merger Event, which warrant shall have terms and conditions as nearly as may be equivalent to those specified herein (including without limitation provisions for adjustments of the Exercise Price and number of Warrant Shares purchasable upon the exercise of the Warrant).

Other Dilutive Events. In case any event shall occur as to which the other provisions of this Section 4 5 are not strictly applicable but as to which the failure to make any adjustment relating thereto would not fairly protect the purchase rights represented by this Warrant in accordance with the essential intent and principles hereof (including, without limitation, the issuance of securities other than Common Stock which have the right to participate in distributions to the holders of Common Stock, the granting of "phantom stock" rights or "stock appreciation rights" or the repurchase of outstanding shares of Common Stock, Convertible Securities or Stock Purchase Rights for a purchase price exceeding the fair market value thereof)this Section 5, then, in each such case, the Majority Company shall immediately make all adjustments necessary to preserve, without dilution, the purchase rights represented by this Warrant Holders may select an independent investment banking firm of nationally recognized standing and reasonably acceptable to the Company to make a determination as to the adjustment, if any, required to be made on a basis consistent with the essential intent and principles established herein as in this Section 5 and shall also immediately appoint a result firm of independent certified public accountants of recognized national standing (which may be the regular auditors of the Company if they satisfy such event in order to preserve standard), which shall give their opinion that such adjustment, if any, preserves, without dilution, the purchase rights represented by this Warrant on a basis consistent with the Warrantsintent and principles established in this Section 5. If Upon receipt of such opinion, the investment bank selected by the Majority Warrant Holders is not reasonably acceptable Company will immediately deliver a copy thereof to the Company, and the Company and the Majority Warrant Holders cannot agree on a mutually acceptable investment bank, then the Company and the Majority Warrant Holders shall each choose one such investment bank and the respective chosen firms shall jointly select a third investment bank, which shall make the determinationHolder of this Warrant. The Company shall pay not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the costs and fees observance or performance of each such investment bank (including any such investment bank selected by of the Majority Warrant Holders)terms of this Warrant, and will at all times in good faith assist in carrying out all of such terms and in the decision taking of all such actions as may be necessary or appropriate in order to protect the rights of the investment bank making such determination shall be final and binding on Holder of this Warrant against dilution or other impairment. Without limiting the Company and all affected holders of Warrants or Warrant Stock. Promptly after receipt generality of the opinion of such investment bank as to any such required adjustmentsforegoing, the Company shall (i) will not permit the par value of any shares of stock receivable upon the exercise of this Warrant to exceed the amount payable therefor upon such exercise, (ii) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of stock on the exercise of the Warrants from time to time outstanding, and (iii) will not take any actions necessary to implement sameaction that results in any adjustment of the Exercise Price if the total number of Shares of Common Stock issuable after such action upon the exercise of all of the Warrants would exceed the total number of Shares of Common Stock then authorized by the Company's certificate of incorporation and available for the purpose of issuance upon such exercise.

Other Dilutive Events. In case any event shall occur as to which the other provisions of this Section 4 are not strictly applicable but as to which the failure to make any adjustment would not fairly protect the purchase rights represented by this Warrant in accordance with the essential intent and principles hereof as determined in good faith by the Company's Board of Directors (including, without limitation, the issuance of equity securities (other than Common Stock which have as specifically provided in Sections 4.1, 4.2, 4.3, 4.4 and 4.6), the right distribution to participate in distributions to the all holders of Common StockStock of evidences of indebtedness, cash or other property (other than cash dividends paid in the ordinary course of business), the granting of "phantom stock" rights or "stock appreciation rights" or the repurchase of outstanding shares of Common Stock, Convertible Securities or Stock Purchase Rights for a purchase price exceeding Fair Value; PROVIDED, HOWEVER, that the fair market value thereofCompany shall be permitted to effect (i) a self tender offer of Common Stock up to 10% of the Fully Diluted Outstanding Common Stock at a price not to exceed Fair Value on the date the self tender offer is first publicly announced by the Company and (ii) a redemption of Convertible Securities in accordance with the terms of such instrument as in effect on the date hereof), then, in each such case, the Majority Warrant Holders may select an independent investment banking firm of nationally recognized standing and reasonably reason ably acceptable to the Company to make a determination as to the adjustment, if any, required to be made on a basis consistent with the essential intent and principles established herein as a result of such event in order to preserve the purchase rights represented by the Warrants. If the investment bank selected by the Majority Warrant Holders is not reasonably acceptable to the Company, and the Company and the Majority Warrant Holders cannot agree on a mutually acceptable investment bank, then the Company and the Majority Warrant Holders shall each choose one such investment bank and the respective chosen firms shall jointly select a third investment bank, which shall make the determination. The Company Company, on the one hand, and all affected holders of Warrants or Warrant Stock, on the other hand, shall each pay 50% of the costs and fees of each such investment bank (including any the holders of Warrants and Warrant Stock shall agree among themselves the pro rata allocation of such investment bank selected by the Majority Warrant Holderscosts and expenses), and the decision of the investment bank making such determination shall be final and binding on the Company and all affected holders of Warrants or Warrant Stock. Promptly after receipt by the Company of the opinion of such investment bank as to any such required adjustments, the Company shall take any actions necessary to implement same.

Other Dilutive Events. In case any event shall occur as to which the other provisions of this Section 4 are not strictly applicable but as to which the failure to make any adjustment would not fairly protect the purchase rights represented by this Warrant in accordance with the essential intent and principles hereof as determined in good faith by the Company's Board of Directors (including, without limitation, the issuance of equity securities (other than Common Stock which have as specifically provided in Sections 4.1, 4.2, 4.3, 4.4 and 4.6), the right distribution to participate in distributions to the all holders of Common StockStock of evidences of indebtedness, cash or other property (other than cash dividends paid in the ordinary course of business), the granting of "phantom stock" rights or "stock appreciation rights" or the repurchase of outstanding shares of Common Stock, Convertible Securities or Stock Purchase Rights for a purchase price exceeding Fair Value; PROVIDED, HOWEVER, that the fair market value thereofCompany shall be permitted to effect (i) a self tender offer of Common Stock up to 10% of the Fully Diluted Outstanding Common Stock at a price not to exceed Fair Value on the date the self tender offer is first publicly announced by the Company and (ii) a redemption of Convertible Securities in accordance with the terms of such instrument as in effect on the date hereof), then, in each such case, the Majority Warrant Holders may select an independent investment banking firm of nationally recognized standing and reasonably acceptable to the Company to make a determination as to the adjustment, if any, required to be made on a basis consistent with the essential intent and principles established herein hereof as determined in good faith by the Board of Directors of the Company as a result of such event in order to preserve the purchase rights represented by the Warrants. If the investment bank selected by the Majority Warrant Holders is not reasonably acceptable to the Company, and the Company and the Majority Warrant Holders cannot agree on a mutually acceptable investment bank, then the Company and the Majority Warrant Holders shall each choose one such investment bank and the respective chosen firms shall jointly select a third investment bank, which shall make the determination; PROVIDED THAT in no circumstance shall a Holder or any of its Affiliates be permitted to appoint themselves as or serve as a designee or be chosen as such. The Company Company, on the one hand, and all affected holders of Warrants or Warrant Stock, on the other hand, shall each pay 50% of the costs and fees of each such investment bank (including any the holders of Warrants and Warrant Stock shall agree among themselves the pro rata allocation of such investment bank selected by the Majority Warrant Holderscosts and expenses), and the decision of the investment bank making such determination shall be final and binding on the Company and all affected holders of Warrants or Warrant Stock. Promptly after receipt by the Company of the opinion of such investment bank as to any such required adjustments, the Company shall take any actions necessary to implement same.

Other Dilutive Events. In case any event shall occur as to which the other provisions of this Section 4 are not strictly applicable but as to which the failure to make any adjustment would not fairly protect the purchase rights represented by this Warrant in accordance with the essential intent and principles hereof as determined in good faith by the Board of Directors of the Company (including, without limitation, the issuance of equity securities (other than Common Stock which have as specifically provided in Sections 4.1, 4.2, 4.3, 4.4 and 4.6), the right distribution to participate in distributions to the all holders of Common StockStock of evidences of indebtedness, cash or other property (other than cash dividends paid in the ordinary course of business), the granting of "phantom xxxx xxx stock" rights or "stock appreciation rights" or the repurchase of outstanding shares of Common Stock, Convertible Securities or Stock Purchase Rights for a purchase price exceeding Fair Value; provided, however, that the fair market value thereofCompany shall be permitted to effect (i) a self tender offer of Common Stock up to 10% of the Fully Diluted Outstanding Common Stock at a price not to exceed Fair Value on the date the self tender offer is first publicly announced by the Company and (ii) a redemp tion of Convertible Securities in accordance with the terms of such instrument as in effect on the date hereof), then, in each such case, the Majority Warrant Holders may select an independent investment banking firm of nationally recognized standing and reasonably acceptable to the Company to make a determination as to the adjustment, if any, required to be made on a basis consistent with the essential intent and principles established herein princi ples hereof as determined in good faith by the Board of Directors of the Company as a result of such event in order to preserve the purchase rights represented by the Warrants. If the investment bank selected by the Majority Warrant Holders is not reasonably acceptable to the Company, and the Company and the Majority Warrant Holders cannot agree on a mutually acceptable investment bank, then the Company and the Majority Warrant Holders shall each choose one such investment bank and the respective chosen firms shall jointly select a third investment bank, which shall make the determination; provided that in no circumstance shall a Holder or any of its Affiliates be permitted to appoint themselves as or serve as a designee or be chosen as such. The Company Company, on the one hand, and all affected holders of Warrants or Warrant Stock, on the other hand, shall each pay 50% of the costs and fees of each such investment bank (including any the holders of Warrants and Warrant Stock shall agree among themselves the pro rata allocation of such investment bank selected by the Majority Warrant Holderscosts and expenses), and the decision of the investment bank making such determination shall be final and binding on the Company and all affected holders of Warrants or Warrant Stock. Promptly after receipt by the Company of the opinion of such investment bank as to any such required adjustments, the Company shall take any actions necessary to implement same.

Other Dilutive Events. In case any event shall occur as to which the other provisions of this Section 4 8 are similar to, but not strictly applicable but as to which the failure to make any adjustment would not fairly protect the purchase rights represented by this Agreement and the Warrant in accordance with the essential intent and principles hereof (including, without limitation, the issuance of securities other than Common Stock which have the right to participate in distributions to the holders of Common Stock, the granting of "phantom stock" rights or "stock appreciation rights" or the repurchase of outstanding shares of Common Stock, Convertible Securities or Stock Purchase Rights for a purchase price exceeding the fair market value thereof), then, in each such case, the Majority Holders of a majority of the Warrant Holders may select an independent investment banking appoint a firm of nationally independent public accountants of recognized national standing and reasonably acceptable to the Company to make a determination Company, which shall give their opinion as to the adjustment, if any, required to be made on a basis consistent with the essential intent and principles established herein as a result of such event in order herein, necessary to preserve the purchase rights represented by this Agreement and the WarrantsWarrant. Upon receipt of such opinion (the "HOLDERS' OPINION"), if the Company agrees with the Holders' Opinion, it will promptly mail a copy thereof to the each Holder and shall make the adjustments described therein. If the investment bank selected by Company does not agree with the Majority Warrant Holders' Opinion, the Company shall cause the Company's independent auditors to review the Holders' Opinion. If the Company notifies the Holders is not reasonably acceptable within 30 days from the receipt of the Holders' Opinion that based upon the opinion of the Company's independent auditors it objects to the Holders' Opinion, then the accountants rendering the Holders' Opinion and the Company, and 's independent auditors shall select a third firm of independent public accountants who will have 30 days to deliver its opinion to the Company and the Majority Warrant Holders cannot agree on a mutually acceptable investment bank, then the Company and the Majority Warrant Holders shall each choose one such investment bank and the respective chosen firms shall jointly select a third investment bank, which shall make the determinationHolders. The Company shall pay the costs and fees opinion of each such investment bank (including any such investment bank selected by the Majority Warrant Holders), and the decision of the investment bank making such determination third firm shall be final conclusive and binding on the Company and all affected holders of Warrants or Warrant Stockthe Holders. Promptly after receipt Each party shall bear its own fees and expenses for the accountant appointed by such party and the Company and the Holders, pro rata, shall equally bear the expenses of the opinion of such investment bank as third firm appointed pursuant to any such required adjustments, the Company shall take any actions necessary to implement samethis Section.

Other Dilutive Events. In case any event shall occur as to which --------------------- the other provisions of this Section 4 5 are not strictly applicable but as to which the failure to make any adjustment relating thereto would not fairly protect the purchase rights represented by this Warrant in accordance with the essential intent and principles hereof (including, without limitation, the issuance of securities other than Common Stock which have the right to participate in distributions to the holders of Common Stock, the granting of "phantom stock" rights or "stock appreciation rights" or the repurchase of outstanding shares of Common Stock, Convertible Securities or Stock Purchase Rights for a purchase price exceeding the fair market value thereof)this Section 5, then, in each such case, the Majority Company shall immediately make all adjustments necessary to preserve, without dilution, the purchase rights represented by this Warrant Holders may select an independent investment banking firm of nationally recognized standing and reasonably acceptable to the Company to make a determination as to the adjustment, if any, required to be made on a basis consistent with the essential intent and principles established herein as in this Section 5 and shall also immediately appoint a result firm of independent certified public accountants of recognized national standing (which may be the regular auditors of the Company if they satisfy such event in order to preserve standard), which shall give their opinion that such adjustment, if any, preserves, without dilution, the purchase rights represented by this Warrant on a basis consistent with the Warrantsintent and principles established in this Section 5. If Upon receipt of such opinion, the investment bank selected by the Majority Warrant Holders is not reasonably acceptable Company will immediately deliver a copy thereof to the Company, and the Company and the Majority Warrant Holders cannot agree on a mutually acceptable investment bank, then the Company and the Majority Warrant Holders shall each choose one such investment bank and the respective chosen firms shall jointly select a third investment bank, which shall make the determinationHolder of this Warrant. The Company shall pay not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the costs and fees observance or performance of each such investment bank (including any such investment bank selected by of the Majority Warrant Holders)terms of this Warrant, and will at all times in good faith assist in carrying out all of such terms and in the decision taking of all such actions as may be necessary or appropriate in order to protect the rights of the investment bank making such determination shall be final and binding on Holder of this Warrant against dilution or other impairment. Without limiting the Company and all affected holders of Warrants or Warrant Stock. Promptly after receipt generality of the opinion of such investment bank as to any such required adjustmentsforegoing, the Company shall (i) will not permit the par value of any shares of stock receivable upon the exercise of this Warrant to exceed the amount payable therefor upon such exercise, (ii) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of stock on the exercise of the Warrants from time to time outstanding, and (iii) will not take any actions necessary to implement sameaction which results in any adjustment of the Exercise Price if the total number of shares of Common Stock issuable after such action upon the exercise of all of the Warrants would exceed the total number of shares of Common Stock then authorized by the Company's certificate of incorporation and available for the purpose of issuance upon such exercise.

Other Dilutive Events. In case any event shall occur as to which the other provisions of this Section 4 5 are not strictly applicable but as to which the failure to make any adjustment relating thereto would not fairly protect the purchase rights represented by this Warrant in accordance with the essential intent and principles hereof (including, without limitation, the issuance of securities other than Common Stock which have the right to participate in distributions to the holders of Common Stock, the granting of "phantom stock" rights or "stock appreciation rights" or the repurchase of outstanding shares of Common Stock, Convertible Securities or Stock Purchase Rights for a purchase price exceeding the fair market value thereof)this Section 5, then, in each such case, the Majority Company shall immediately make all adjustments necessary to preserve, without dilution, the purchase rights represented by this Warrant Holders may select an independent investment banking firm of nationally recognized standing and reasonably acceptable to the Company to make a determination as to the adjustment, if any, required to be made on a basis consistent with the essential intent and principles established herein as in this Section 5 and shall also immediately appoint a result firm of independent certified public accountants of recognized national standing (which may be the regular auditors of the Company if they satisfy such event in order to preserve standard), which shall give their opinion that such adjustment, if any, preserves, without dilution, the purchase rights represented by this Warrant on a basis consistent with the Warrantsintent and principles established in this Section 5. If Upon receipt of such opinion, the investment bank selected by the Majority Warrant Holders is not reasonably acceptable Company will immediately deliver a copy thereof to the Company, and the Company and the Majority Warrant Holders cannot agree on a mutually acceptable investment bank, then the Company and the Majority Warrant Holders shall each choose one such investment bank and the respective chosen firms shall jointly select a third investment bank, which shall make the determinationHolder of this Warrant. The Company shall pay not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the costs and fees observance or performance of each such investment bank (including any such investment bank selected by of the Majority Warrant Holders)terms of this Warrant, and will at all times in good faith assist in carrying out all of such terms and in the decision taking of all such actions as may be necessary or appropriate in order to protect the rights of the investment bank making such determination shall be final and binding on Holder of this Warrant against dilution or other impairment. Without limiting the Company and all affected holders of Warrants or Warrant Stock. Promptly after receipt generality of the opinion of such investment bank as to any such required adjustmentsforegoing, the Company shall (i) will not permit the par value of any shares of stock receivable upon the exercise of this Warrant to exceed the amount payable therefor upon such exercise, (ii) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of stock on the exercise of the Warrants from time to time outstanding, and (iii) will not take any actions necessary to implement sameaction which results in any adjustment of the Exercise Price if the total number of shares of Common Stock issuable after such action upon the exercise of all of the Warrants would exceed the total number of shares of Common Stock then authorized by the Company's certificate of incorporation and available for the purpose of issuance upon such exercise.

Other Dilutive Events. In case any event shall occur as to which the other provisions of this Section 4 5 are not strictly applicable but as to which the failure to make any adjustment relating thereto would not fairly protect the purchase rights represented by this Warrant in accordance with the essential intent and principles hereof (including, without limitation, the issuance of securities other than Common Stock which have the right to participate in distributions to the holders of Common Stock, the granting of "phantom stock" rights or "stock appreciation rights" or the repurchase of outstanding shares of Common Stock, Convertible Securities or Stock Purchase Rights for a purchase price exceeding the fair market value thereof)this Section 5, then, in each such case, the Majority Company shall immediately make all adjustments necessary to preserve, without dilution, the purchase rights represented by this Warrant Holders may select an independent investment banking firm of nationally recognized standing and reasonably acceptable to the Company to make a determination as to the adjustment, if any, required to be made on a basis consistent with the essential intent and principles established herein as in this Section 5 and shall also immediately appoint a result firm of independent certified public accountants of recognized national standing (which may be the regular auditors of the Company if they satisfy such event in order to preserve standard), which shall give their opinion that such adjustment, if any, preserves, without dilution, the purchase rights represented by this Warrant on a basis consistent with the Warrantsintent and principles established in this Section 5. If Upon receipt of such opinion, the investment bank selected by the Majority Warrant Holders is not reasonably acceptable Company will immediately deliver a copy thereof to the Company, and the Company and the Majority Warrant Holders cannot agree on a mutually acceptable investment bank, then the Company and the Majority Warrant Holders shall each choose one such investment bank and the respective chosen firms shall jointly select a third investment bank, which shall make the determinationHolder of this Warrant. The Company shall pay not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the costs and fees observance or performance of each such investment bank (including any such investment bank selected by of the Majority Warrant Holders)terms of this Warrant, and will at all times in good faith assist in carrying out all of such terms and in the decision taking of all such actions as may be necessary or appropriate in order to protect the rights of the investment bank making such determination shall be final and binding on Holder of this Warrant against dilution or other impairment. Without limiting the Company and all affected holders of Warrants or Warrant Stock. Promptly after receipt generality of the opinion of such investment bank as to any such required adjustmentsforegoing, the Company shall (i) will not permit the par value of any shares of stock receivable upon the exercise of this Warrant to exceed the amount payable therefor upon such exercise, (ii) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of stock on the exercise of the Warrants from time to time outstanding, and (iii) will not take any actions necessary to implement same.action that results in any adjustment of the Exercise Price if the total number of Shares of Common Stock issuable after such action upon the exercise of all of the

Other Dilutive Events. In case any event shall occur as to which the other --------------------- provisions of this Section 4 5 are not strictly applicable but as to which the failure to make any adjustment relating thereto would not fairly protect the purchase rights represented by this Warrant in accordance with the essential intent and principles hereof (including, without limitation, the issuance of securities other than Common Stock which have the right to participate in distributions to the holders of Common Stock, the granting of "phantom stock" rights or "stock appreciation rights" or the repurchase of outstanding shares of Common Stock, Convertible Securities or Stock Purchase Rights for a purchase price exceeding the fair market value thereof)this Section 5, then, in each such case, the Majority Company shall immediately make all adjustments necessary to preserve, without dilution, the purchase rights represented by this Warrant Holders may select an independent investment banking firm of nationally recognized standing and reasonably acceptable to the Company to make a determination as to the adjustment, if any, required to be made on a basis consistent with the essential intent and principles established herein as in this Section 5 and shall also immediately appoint a result firm of independent certified public accountants of recognized national standing (which may be the regular auditors of the Company if they satisfy such event in order to preserve standard), which shall give their opinion that such adjustment, if any, preserves, without dilution, the purchase rights represented by this Warrant on a basis consistent with the Warrantsintent and principles established in this Section 5. If Upon receipt of such opinion, the investment bank selected by the Majority Warrant Holders is not reasonably acceptable Company will immediately deliver a copy thereof to the Company, and the Company and the Majority Warrant Holders cannot agree on a mutually acceptable investment bank, then the Company and the Majority Warrant Holders shall each choose one such investment bank and the respective chosen firms shall jointly select a third investment bank, which shall make the determinationHolder of this Warrant. The Company shall pay not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the costs and fees observance or performance of each such investment bank (including any such investment bank selected by of the Majority Warrant Holders)terms of this Warrant, and will at all times in good faith assist in carrying out all of such terms and in the decision taking of all such actions as may be necessary or appropriate in order to protect the rights of the investment bank making such determination shall be final and binding on Holder of this Warrant against dilution or other impairment. Without limiting the Company and all affected holders of Warrants or Warrant Stock. Promptly after receipt generality of the opinion of such investment bank as to any such required adjustmentsforegoing, the Company shall (i) will not permit the par value of any shares of stock receivable upon the exercise of this Warrant to exceed the amount payable therefor upon such exercise, (ii) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of stock on the exercise of the Warrants from time to time outstanding, and (iii) will not take any actions necessary to implement sameaction which results in any adjustment of the Exercise Price if the total number of shares of Common Stock issuable after such action upon the exercise of all of the Warrants would exceed the total number of shares of Common Stock then authorized by the Company's certificate of incorporation and available for the purpose of issuance upon such exercise.

Other Dilutive Events. In case If any event shall occur as to which the other provisions of this Section 4 are 2 is not strictly applicable but as with respect to which the failure to make any adjustment would not fairly protect the purchase Holders or fairly preserve and give effect to the anti-dilution rights represented by this Warrant in accordance with the its essential intent and principles hereof (including, without limitation, the issuance of securities other than Common Stock which have the right to participate in distributions to the holders of Common Stock, the granting of "phantom stock" rights or "stock appreciation rights" or the repurchase of outstanding shares of Common Stock, Convertible Securities or Stock Purchase Rights for a purchase price exceeding the fair market value thereof)principles, then, in each such case, the Majority Warrant Holders may select an independent investment banking firm of nationally recognized standing and reasonably acceptable to Company shall promptly adjust (the “Company to make a determination as to the adjustmentDilutive Adjustment”), if any, required to be made on a basis consistent with the essential intent and principles established herein as a result in Section 2, the shares of such event in order Common Stock (or Other Securities) issuable on the exercise of the Warrants to preserve the purchase extent necessary to preserve, without dilution, the rights represented by the Warrantsthis Warrant. If the investment bank selected by Holder shall object to the Majority Warrant Holders adjustment or the facts upon which such adjustment is not reasonably acceptable based, the Holder shall prepare a calculation of what it believes to be the proper adjustment (the “Holder Dilutive Adjustment”) and submit such calculation to the Company; provided, and that, the Company Dilutive Adjustment shall remain in effect regardless of any dispute by the Holder of such adjustment. If the Company and the Majority Warrant Holders Holder cannot agree on upon a mutually acceptable investment bankfinal adjustment within ten (10) days after the Company’s receipt of such notice, then the difference between the Company Dilutive Adjustment, as such adjustment was readjusted in writing and delivered to the Majority Warrant Holders shall each choose one such investment bank and Holder prior to the respective chosen firms shall jointly select a third investment bank, which shall make initiation by written demand of arbitration hereby (the determination. The “Adjusted Company shall pay the costs and fees of each such investment bank (including any such investment bank selected by the Majority Warrant HoldersDilutive Adjustment”), and the Holder Dilutive Adjustment, as such adjustment was readjusted in writing and delivered to the Company prior to the initiation by written demand of arbitration hereby (the “Adjusted Holder Dilutive Adjustment”), shall be settled finally, completely and conclusively by binding arbitration in Houston, Xxxxxx County, Texas by a single arbitrator, to be selected from a panel of persons qualified by education and training to pass on the matter to be decided, in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Arbitration shall be initiated by written demand by the party seeking arbitration. This agreement to arbitrate shall be specifically enforceable only in the District Court of Xxxxxx County, Texas. A decision of the investment bank making such determination arbitrator (the “Arbitrated Dilutive Adjustment”) shall be final final, conclusive, and binding on all parties, and judgment may be entered thereon in the Company District Court of Xxxxxx County, Texas, to enforce such decision and all affected holders of Warrants or Warrant Stockthe benefits thereof. Promptly after receipt Any costs and expenses related to such arbitration and required to be paid prior to the delivery of the opinion of arbitrator’s decision (the “Initial Arbitration Costs”) shall initially be paid by the party commencing arbitration. All costs and expenses related to such investment bank as to any arbitration shall ultimately be paid by the party whose adjusted dilutive adjustment referenced above was further from the Arbitrated Dilutive Adjustment and such required adjustmentsparty shall, if necessary, promptly reimburse the Company shall take any actions necessary to implement sameother party for the Initial Arbitration Costs paid by such other party.

Other Dilutive Events. (a) In case any event shall occur as to which the other provisions of this Section 4 3 are not strictly applicable applicable, but as to which the failure to make any adjustment would not fairly protect the purchase rights represented by this the Warrant in accordance with the essential intent and principles hereof (including, without limitation, the issuance of securities other than Common Stock which have the right to participate in distributions to the holders of Common Stock, the granting of "phantom stock" rights or "stock appreciation rights" or the repurchase of outstanding shares of Common Stock, Convertible Securities or Stock Purchase Rights for a purchase price exceeding the fair market value thereof)this Section 3, then, in each such case, the Majority Warrant Holders may select an independent investment banking firm of nationally recognized standing and reasonably acceptable to the Company to make a determination as to shall determine the adjustment, if any, required to be made on a basis consistent with the essential intent and principles established herein as a result of such event in order this Section 3 hereof necessary to preserve without dilution the purchase rights represented by the Warrants. If the investment bank selected by the Majority Warrant Holders is not reasonably acceptable Warrant. (b) Anything in this Section 3 to the Company, and the Company and the Majority Warrant Holders cannot agree on a mutually acceptable investment bank, then the Company and the Majority Warrant Holders shall each choose one such investment bank and the respective chosen firms shall jointly select a third investment bank, which shall make the determination. The Company shall pay the costs and fees of each such investment bank (including any such investment bank selected by the Majority Warrant Holders), and the decision of the investment bank making such determination shall be final and binding on the Company and all affected holders of Warrants or Warrant Stock. Promptly after receipt of the opinion of such investment bank as to any such required adjustmentscontrary notwithstanding, the Company shall take be entitled, but shall not be required, to make such changes in the Exercise Price, in addition to those required by this Section 3, as it in its discretion shall determine to be advisable in order that any actions necessary dividend or distribution in shares of Common Stock, subdivision, reclassification or combination of shares of Common Stock, issuance of rights, options or warrants to implement samepurchase Common Stock or distribution of shares of stock other than Common Stock, evidences of indebtedness or assets (other than distributions in cash out of retained earnings) referred to hereinabove in this Section 3, hereafter made by the Company to the holders of its Common Stock shall not be taxable to them, provided, however, that this would not result in a constructive distribution under Section 305 of the Internal Revenue Code of 1986, as amended, to the Holder. (c) If after the date hereof, any capital reorganization or reclassification of the Common Stock of the Company, or consolidation or merger of the Company with another corporation (other than covered by Section 3.1) or the sale of all or substantially all of its assets to another corporation or other similar event shall be effected (any such event a "Merger Event"), then as a condition of such Merger Event, lawful, fair and adequate provision shall be made whereby the Holder shall thereafter have the right to purchase and receive in lieu of the Common Stock of the Company immediately theretofore purchasable and receivable upon the exercise of the Warrant, upon the basis and terms and conditions as nearly as may be equivalent to those specified herein (including without limitation provisions for adjustments of the Exercise Price and number of Warrant Shares purchasable upon the exercise of the Warrant), such shares of stock or other securities or assets as may be issuable or payable with respect to or in exchange for the number of shares of Common Stock immediately theretofore purchasable and receivable upon the exercise of the Warrant, had such Merger Event not taken place. To the extent the consideration to be received by the Holder as a result of a Merger Event consists of securities in the surviving entity such surviving entity shall execute and deliver to the Holder a substitute Warrant granting the Holder the right to receive upon exercise thereof the kind and amount of securities receivable by a holder of the number of shares of Common Stock of the Company for which such Warrant might have been exercised immediately prior to such Merger Event.

Other Dilutive Events. In case any event shall occur as to which the other provisions of this Section 4 are not strictly applicable but as to which the failure to make any adjustment would not fairly protect the purchase rights represented by this Warrant in accordance with the essential intent and principles hereof as determined in good faith by the Company's Board of Directors (including, without limitation, the issuance of equity securities (other than Common Stock which have as specifically provided in Sections 4.1, 4.2, 4.3, 4.4 and 4.6), the right distribution to participate in distributions to the all holders of Common StockStock of evidences of indebtedness, cash or other property (other than cash dividends paid in the ordinary course of business), the granting of "phantom stock" rights or "stock appreciation rights" or the repurchase of outstanding shares of Common Stock, Convertible Securities or Stock Purchase Rights for a purchase price exceeding Fair Value; provided, however, that the fair market value thereofCompany shall be permitted to effect (i) a self tender offer of Common Stock up to 10% of the Fully Diluted Outstanding Common Stock at a price not to exceed Fair Value on the date the self tender offer is first publicly announced by the Company and (ii) a redemption of Convertible Securities in accordance with the terms of such instrument as in effect on the date hereof), then, in each such case, the Majority Warrant Holders may select an independent investment banking firm of nationally recognized standing and reasonably acceptable to the Company to make a determination as to the adjustment, if any, required to be made on a basis consistent with the essential intent and principles established herein as a result of such event in order to preserve the purchase rights represented by the Warrants. If the investment bank selected by the Majority Warrant Holders is not reasonably acceptable to the Company, and the Company and the Majority Warrant Holders cannot agree on a mutually acceptable investment bank, then the Company and the Majority Warrant Holders shall each choose one such investment bank and the respective chosen firms shall jointly select a third investment bank, which shall make the determination. The Company Company, on the one hand, and all affected holders of Warrants or Warrant Stock, on the other hand, shall each pay 50% of the costs and fees of each such investment bank (including any the holders of Warrants and Warrant Stock shall agree among themselves the pro rata allocation of such investment bank selected by the Majority Warrant Holderscosts and expenses), and the decision of the investment bank making such determination shall be final and binding on the Company and all affected holders of Warrants or Warrant Stock. Promptly after receipt by the Company of the opinion of such investment bank as to any such required adjustments, the Company shall take any actions necessary to implement same.