Common use of Payment in Stock Clause in Contracts

Payment in Stock. (a) The Company may elect to pay some or all of the Repurchase Price by delivery of shares of Common Stock or shares of common stock in any Person succeeding the Company, if and only if, each of the following conditions shall be satisfied (without limiting any other conditions contained herein): (1) Any such payment shall be made in five equal installments, on each of the five consecutive Trading Days ending on and including the third Trading Day immediately preceding the date when any cash payment would otherwise be due, and the shares of Common Stock or common stock of any Person succeeding the Company deliverable in payment of each such installment shall have a fair market value as of the date of such installment of not less than 20% of the amount of such payment due hereunder which is payable in shares of stock. For purposes of this Section 6, the fair market value of shares of Common Stock shall be equal to 95% of the Closing Price for the immediately preceding Trading Day; (2) In the event any shares of Common Stock or common stock of any Person succeeding the Company to be issued in respect of any amount due hereunder require registration under any Federal securities law before such shares may be freely transferrable without being subject to any transfer restrictions under the Securities Act of 1933 upon issuance, such registration shall have been completed and shall have become effective prior to the date of the first such installment; (3) In the event any shares of Common Stock or common stock of any Person succeeding the Company to be issued in respect of any amount due hereunder require registration with or approval of any governmental authority under any State law or any other Federal law before such shares may be validly issued or delivered upon issuance or transferred freely, such registration shall have been completed or have become effective and such approval shall have been obtained, in each case, prior to the date of the first such installment; (4) The shares of Common Stock or common stock of any Person succeeding the Company deliverable in payment of such amount due hereunder shall have been approved for quotation in the Nasdaq National Market immediately prior to the date of the first such installment or, if at the time its shares of Common Stock or shares of common stock of any Person succeeding the Company are listed or admitted for trading on any national securities exchange, the shares of Common Stock or common stock in any Person succeeding the Company and deliverable shall have been so listed or admitted for trading. (5) All shares of Common Stock or common stock of any Person succeeding the Company deliverable in payment of such amount due hereunder shall, upon issue, be duly and validly issued and fully paid and non-assessable and free of any preemptive rights; (6) In respect of each such payment date, the Company shall have given the holder of this Security not less than 10 nor more than 15 Trading Days' notice of its election to effect payment in respect of such payment date by delivery of shares of Common Stock; provided that any such notice shall accompany the Company's notice of a Change of Control relating thereto; and (7) The Company shall deliver, or cause to be delivered a certificate from the Person succeeding the Company which states, that after giving effect to any Change of Control that the holding by the Purchasers or any assignees thereof of this Security, or the holding of any Common Stock or common stock of any Person succeeding the Company after conversion of this Security would not constitute a prohibited transaction which would violate the prohibition of section 406 of ERISA or which would subject any "disqualified person" (as defined in section 4975(e)(2) of the Code) to a tax pursuant to section 4975 (c)(1)(A)-(D) of the Code. If all of the conditions set forth in this Section 6(a) are not satisfied in accordance with the terms hereof, any such amount due hereunder shall be paid by the Company only in cash. (b) Any issuance of shares of Common Stock or shares of common stock of any Person succeeding the Company in respect of any installment due hereunder pursuant to this Section 6 shall be deemed to have been effected immediately prior to the close of business on the date of delivery of such installment and the person or persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such delivery shall be deemed to have become on such date the holder or holders of record of the shares represented thereby; provided, however, that in case any installment shall be due on a date when the stock transfer books of the Company shall be closed, the person or persons in whose name or names the certificate or certificates for such shares are to be issued shall be deemed to have become the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued pursuant to this Section 6 declared prior to the relevant delivery date; and (c) Any issuance and delivery of certificates for shares of common stock or shares of common stock of any Person succeeding the Company pursuant to this Section 6 shall be made without charge to the holder of this Security for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby.

Payment in Stock. (a) The Company may elect to pay some or all of the Repurchase Price by delivery of shares of Common Stock or shares of common stock in any Person succeeding the Company, if and only if, each of the following conditions shall be satisfied (without limiting any other conditions contained herein): (1) Any such payment shall be made in five equal installments, on each of the five consecutive Trading Days ending on and including the third Trading Day immediately preceding the date when any cash payment would otherwise be due, and the shares of Common Stock or common stock of any Person succeeding the Company deliverable in payment of each such installment shall have a fair market value as of the date of such installment of not less than 20% of the amount of such payment due hereunder which is payable in shares of stock. For purposes of this Section 6, the fair market value of shares of Common Stock shall be equal to 95% of the Closing Price for the immediately preceding Trading Day; (2) In the event any shares of Common Stock or common stock of any Person succeeding the Company to be issued in respect of any amount due hereunder require registration under any Federal securities law before such shares may be freely transferrable transferable without being subject to any transfer restrictions under the Securities Act of 1933 upon issuance, such registration shall have been completed and shall have become effective prior to the date of the first such installment; (3) In the event any shares of Common Stock or common stock of any Person succeeding the Company to be issued in respect of any amount due hereunder require registration with or approval of any governmental authority under any State law or any other Federal law before such shares may be validly issued or delivered upon issuance or transferred freely, such registration shall have been completed or have become effective and such approval shall have been obtained, in each case, prior to the date of the first such installment; (4) The shares of Common Stock or common stock of any Person succeeding the Company deliverable in payment of such amount due hereunder shall have been approved for quotation in the Nasdaq National Market immediately prior to the date of the first such installment or, if at the time its shares of Common Stock or shares of common stock of any Person succeeding the Company are listed or admitted for trading on any national securities exchange, the shares of Common Stock or common stock in any Person succeeding the Company and deliverable shall have been so listed or admitted for trading. (5) All shares of Common Stock or common stock of any Person succeeding the Company deliverable in payment of such amount due hereunder shall, upon issue, be duly and validly issued and fully paid and non-assessable and free of any preemptive rights; (6) In respect of each such payment date, the Company shall have given the holder of this Security not less than 10 nor more than 15 Trading Days' notice of its election to effect payment in respect of such payment date by delivery of shares of Common Stock; provided that any such notice shall accompany the Company's notice of a Change of Control relating thereto; and (7) The Company shall deliver, or cause to be delivered a certificate from the Person succeeding the Company which states, that after giving effect to any Change of Control that the holding by the Purchasers or any assignees thereof of this Security, or the holding of any Common Stock or common stock of any Person succeeding the Company after conversion of this Security would not constitute a prohibited transaction which would violate the prohibition of section 406 of ERISA or which would subject any "disqualified person" (as defined in section 4975(e)(2) of the Code) to a tax pursuant to section 4975 (c)(1)(A)-(D) of the Code. If all of the conditions set forth in this Section 6(a) are not satisfied in accordance with the terms hereof, any such amount due hereunder shall be paid by the Company only in cash. (b) Any issuance of shares of Common Stock or shares of common stock of any Person succeeding the Company in respect of any installment due hereunder pursuant to this Section 6 shall be deemed to have been effected immediately prior to the close of business on the date of delivery of such installment and the person or persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such delivery shall be deemed to have become on such date the holder or holders of record of the shares represented thereby; provided, however, that in case any installment shall be due on a date when the stock transfer books of the Company shall be closed, the person or persons in whose name or names the certificate or certificates for such shares are to be issued shall be deemed to have become the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued pursuant to this Section 6 declared prior to the relevant delivery date; and (c) Any issuance and delivery of certificates for shares of common stock or shares of common stock of any Person succeeding the Company pursuant to this Section 6 shall be made without charge to the holder of this Security for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby.

Payment in Stock. (a) The Company may elect to pay some or all of the Repurchase Price by delivery of shares of Common Stock or shares of common stock in any Person succeeding the Company, if and only if, each of the following conditions shall be satisfied (without limiting any other conditions contained herein): (1) Any such payment shall be made in five equal installments, on each of the five consecutive Trading Days ending on and including the third Trading Day immediately preceding the date when any cash payment would otherwise be due, and the shares of Common Stock or common stock of any Person succeeding the Company deliverable in payment of each such installment shall have a fair market value as of the date of such installment of not less than 20% of the amount of such payment due hereunder which is payable in shares of stock. For purposes of this Section 6, the fair market value of shares of Common Stock shall be equal to 95% of the Closing Price for the immediately preceding Trading Day; (2) In the event any shares payment of Common Stock or common stock the indemnification obligations of any Person succeeding the Company Shareholders set forth in this Article 9 is required to be issued in respect of any amount due hereunder require registration under any Federal securities law before such shares may be freely transferrable without being subject to any transfer restrictions under the Securities Act of 1933 upon issuance, such registration shall have been completed and shall have become effective made prior to the date earlier to occur of (i) the first Actual Effectiveness Date (as defined in Exhibit 6.1(f) hereto) or (ii) one year from the Closing Date, the Shareholders may satisfy such installment; (3) In payment obligation in whole or in part by delivery to the event any Merger Sub Group of shares of Parent Common Stock, which shares, for such purpose, shall be valued at the Fair Market Value (as hereinafter defined) of Parent Common Stock or common stock of any Person succeeding the Company to be issued in respect of any amount due hereunder require registration with or approval of any governmental authority under any State law or any other Federal law before such shares may be validly issued or delivered upon issuance or transferred freely, such registration shall have been completed or have become effective and such approval shall have been obtained, in each case, prior to on the date of the first such installment; (4) The shares of Common Stock or common stock of any Person succeeding the Company deliverable in payment of such amount due hereunder shall have been approved for quotation in the Nasdaq National Market immediately prior to the date of on which such shares are delivered by the first such installment or, if at the time its shares of Common Stock Shareholders in full or shares of common stock of any Person succeeding the Company are listed or admitted for trading on any national securities exchange, the shares of Common Stock or common stock in any Person succeeding the Company and deliverable shall have been so listed or admitted for trading. (5) All shares of Common Stock or common stock of any Person succeeding the Company deliverable in payment of such amount due hereunder shall, upon issue, be duly and validly issued and fully paid and non-assessable and free of any preemptive rights; (6) In respect of each such payment date, the Company shall have given the holder of this Security not less than 10 nor more than 15 Trading Days' notice of its election to effect payment in respect partial satisfaction of such payment date by delivery of shares of obligation. "Fair Market Value" shall mean, with respect to the Parent Common Stock; provided that any such notice shall accompany , (i) the Company's notice of a Change of Control relating thereto; and (7) The Company shall deliver, or cause to be delivered a certificate from the Person succeeding the Company which states, that after giving effect to any Change of Control that the holding by the Purchasers or any assignees thereof of this Security, or the holding of any Common Stock or common stock of any Person succeeding the Company after conversion of this Security would not constitute a prohibited transaction which would violate the prohibition of section 406 of ERISA or which would subject any "disqualified person" (as defined in section 4975(e)(2) average of the Code) to a tax pursuant to section 4975 (c)(1)(A)-(D) high and low reported sales prices, regular way, or, in the event that no sale takes place on any day, the average of the Code. If all of the conditions set forth reported high and low bid and asked prices, regular way, in this Section 6(a) are not satisfied in accordance with the terms hereof, any such amount due hereunder shall be paid by the Company only in cash. (b) Any issuance of shares of Common Stock or shares of common stock of any Person succeeding the Company in respect of any installment due hereunder pursuant to this Section 6 shall be deemed to have been effected immediately prior to the close of business either case as reported on the date of delivery of such installment and the person or persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such delivery shall be deemed to have become on such date the holder or holders of record of the shares represented thereby; provided, however, that in case any installment shall be due on a date when the principal stock transfer books of the Company shall be closed, the person or persons in whose name or names the certificate or certificates for such shares are to be issued shall be deemed to have become the record holder or holders thereof for all purposes at the opening of business on the next succeeding day exchange on which such stock transfer books are open. No payment is listed, or, if not so listed, on the Nasdaq National Market System or adjustment on the Nasdaq Smallcap Market; or (ii) if such stock is not so listed, (A) the average of the high and low bid and high and low asked prices on each such day in the over-the-counter market as reported through Nasdaq, or (B) if bid and asked prices for such security on any day shall not have been reported through Nasdaq, the average of the bid and asked prices for such day as furnished by any New York Stock Exchange member firm regularly making a market in such security selected for such purpose by Parent; or (iii) if such security is not publicly traded, as from time to time agreed to by Parent and the Shareholders or, if no such agreement is reached within ten (10) business days of good faith negotiations, as determined by an independent investment banking firm mutually agreeable to Parent and the Shareholders whose fees and expenses shall be made for dividends or distributions on any Common Stock issued pursuant to this Section 6 declared prior to shared equally by Parent and the relevant delivery date; and (c) Any issuance and delivery of certificates for shares of common stock or shares of common stock of any Person succeeding the Company pursuant to this Section 6 shall be made without charge to the holder of this Security for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented therebyShareholders.

Payment in Stock. (a) The Company may elect to pay some any amount due hereunder in respect of interest or all of the Repurchase Price in respect hereof by delivery of shares of Common Stock or shares of common stock in any Person succeeding the Company, if and only if, each of if the following conditions shall be satisfied (without limiting any other conditions contained herein):have been satisfied: (1) Any such payment shall be made in five equal installments, on each of the five consecutive Trading Days ending on and including the third Trading Day immediately preceding the date when any cash payment would otherwise be due, and the shares of Common Stock or common stock of any Person succeeding the Company deliverable in payment of each such installment shall have a fair market value as of the date of such installment of not less than 20% of the amount of such payment due hereunder which is payable in shares of stockhereunder. For purposes of this Section 6, the fair market value of shares of Common Stock shall be equal to 95% of the Closing Price for the immediately preceding Trading Day; (2) In the event any shares of Common Stock or common stock of any Person succeeding the Company to be issued in respect of any such amount due hereunder require registration under any Federal securities law before such shares may be freely transferrable without being subject to any transfer restrictions under the Securities Act of 1933 upon issuance, such registration shall have been completed and shall have become effective prior to the date of the first such installment; (3) In the event any shares of Common Stock or common stock of any Person succeeding the Company to be issued in respect of any such amount due hereunder require registration with or approval of any governmental authority under any State law or any other Federal law before such shares may be validly issued or delivered upon issuance or transferred freelyissuance, such registration shall have been completed or have become effective and such approval shall have been obtained, in each case, prior to the date of the first such installment; (4) The shares of Common Stock or common stock of any Person succeeding the Company deliverable in payment of such amount due hereunder shall have been approved for quotation in the Nasdaq National Market immediately prior to the date of the first such installment or, if at the time its shares of Common Stock or shares of common stock of any Person succeeding the Company are listed or admitted for trading on any national securities exchange, the shares of Common Stock or common stock in any Person succeeding the Company and deliverable shall have been so listed or admitted for trading.installment; (5) All shares of Common Stock or common stock of any Person succeeding the Company deliverable in payment of such amount due hereunder shall, upon issue, be duly and validly issued and fully paid and non-assessable and free of any preemptive rights;; and (6) In respect of each such payment date, the Company shall have given the holder of this Security not less than 10 nor more than 15 Trading Days' notice of its election to effect payment in respect of such payment date by delivery of shares of Common Stock; provided that any such notice in respect of amounts payable on a Repurchase Date shall accompany the Company's notice of a Change of Control relating thereto; and (7) The Company shall deliver, or cause to be delivered a certificate from the Person succeeding the Company which states, that after giving effect to any Change of Control that the holding by the Purchasers or any assignees thereof of this Security, or the holding of any Common Stock or common stock of any Person succeeding the Company after conversion of this Security would not constitute a prohibited transaction which would violate the prohibition of section 406 of ERISA or which would subject any "disqualified person" (as defined in section 4975(e)(2) of the Code) to a tax pursuant to section 4975 (c)(1)(A)-(D) of the Code. If all of the conditions set forth in this Section 6(a) are not satisfied in accordance with the terms hereofthereof, any such amount due hereunder shall be paid by the Company only in cash. Notwithstanding the foregoing, at no time will the Company deliver shares of Common Stock to any holder in satisfaction of an obligation to pay interest or Repurchase Price if the number of shares so delivered, together with the number of shares of Common Stock owned (or deemed for bank regulatory purposes to be owned) by such holder and its affiliates as theretofore notified to the Company (in a notice delivered not less than five Trading Days prior to the relevant interest payment date, in the case of interest, or as set forth in the election of holder to require repurchase, in the case of Repurchase Price), represent more than 4.9% of the Common Stock then outstanding. If the limitation set forth in the previous sentence would apply to any payment of interest or Repurchase Price, the Company may elect (by notice to the holder delivered not less than three Trading Days prior to the relevant interest payment date, in the case of interest, or not less than eight Trading Days prior to the Repurchase Date, in the case of Repurchase Price) to satisfy a portion of such payment in shares of Common Stock (up to the maximum number of shares permitted under the limitation set forth in the previous sentence) and the balance in cash. (b) Any issuance of shares of Common Stock or shares of common stock of any Person succeeding the Company in respect of any installment due hereunder pursuant to this Section 6 shall be deemed to have been effected immediately prior to the close of business on the date of delivery of such installment and the person or persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such delivery shall be deemed to have become on such date the holder or holders of record of the shares represented thereby; provided, however, that in case any installment shall be due on a date when the stock transfer books of the Company shall be closed, the person or persons in whose name or names the certificate or certificates for such shares are to be issued shall be deemed to have become the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued pursuant to this Section 6 declared prior to the relevant delivery date; and. (c) No fractions of shares shall be issued upon payment made in shares of Common Stock in respect of this Security. Instead of any fractional share of Common Stock which would otherwise be so issuable, the Company will round up to the next higher whole share. (d) Any issuance and delivery of certificates for shares of common stock or shares of common stock of any Person succeeding the Company Common Stock pursuant to this Section 6 shall be made without charge to the holder of this Security for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the holder of this Security, and no such issuance or delivery shall be made unless and until the person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.