Common use of Purchase of Securities at Option of the Holder upon Change in Control Clause in Contracts

Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding there shall occur a Change in Control, Securities shall be purchased by the Company at the option of the Holders thereof as of the date that is 30 Business Days after the occurrence of the Change in Control (the "Change in Control Purchase Date") at a purchase price equal to the principal amount of the Securities, plus accrued and unpaid interest to, but excluding, the Change in Control Purchase Date (the "Change in Control Purchase Price"), subject to satisfaction by or on behalf of any Holder of the requirements set forth in subsection (c) of this Section 3.8. A " Change in Control" shall be deemed to have occurred if any of the following occurs after the date hereof: (1) any "person" or "group" (as such terms are defined below) is or becomes the "beneficial owner" (as defined below), directly or indirectly, of shares of Voting Stock of the Company representing 50% or more of the total voting power of all outstanding classes of Voting Stock of the Company or has the power, directly or indirectly, to elect a majority of the members of the Board of Directors of the Company; or (2) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the Persons that "beneficially owned" (as defined below), directly or indirectly, shares of Voting Stock of the Company immediately prior to such transaction "beneficially own" (as defined below), directly or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power of all outstanding classes of Voting Stock of the surviving or transferee Person; or (3) there shall occur the liquidation or dissolution of the Company.

Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding on or prior to February 13, 2004 there shall occur have occurred a Change in Control, Securities shall be purchased by the Company Company, at the option of the Holders thereof Holder thereof, at a purchase price specified in paragraph 6 of the Securities (the "Change in Control Purchase Price"), as of the date that is 30 35 Business Days after the occurrence of the Change in Control (the "Change in Control Purchase Date") at a purchase price equal to the principal amount of the Securities, plus accrued and unpaid interest to, but excluding, the Change in Control Purchase Date (the "Change in Control Purchase Price"), subject to satisfaction by or on behalf of any the Holder of the requirements set forth in subsection (c) of this Section 3.83.9(c). A " Change in Control" shall be deemed to have occurred if any at such time as either of the following occurs after the date hereofevents shall occur: (1i) There shall be consummated any "person" share exchange, consolidation or "group" (as such terms are defined below) is merger of the Company pursuant to which the shares of CD Common Stock would be converted into cash, securities or becomes other property, in each case other than a share exchange, consolidation or merger of the "beneficial owner" (as defined below)Company in which the holders of the shares of CD Common Stock immediately prior to the share exchange, consolidation or merger have, directly or indirectly, of shares of Voting Stock of the Company representing 50% or more of the total voting power of all outstanding classes of Voting Stock of the Company or has the power, directly or indirectly, to elect a majority of the members of the Board of Directors of the Company; or (2) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the Persons that "beneficially owned" (as defined below), directly or indirectly, shares of Voting Stock of the Company immediately prior to such transaction "beneficially own" (as defined below), directly or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power in the aggregate of all outstanding classes of Voting Capital Stock of the continuing or surviving corporation immediately after the share exchange, consolidation or transferee Personmerger; or (3ii) there There is a report filed on Schedule 13D or TO (or any successor schedule, form or report) pursuant to the Exchange Act, disclosing that any person (for the purposes of this Section 3.9 only, as the term "person" is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of 50% or more of the voting power of the CD Common Stock then outstanding; provided, however, that a person shall occur not be deemed beneficial owner of, or to own beneficially, (A) any securities tendered pursuant to a tender or exchange offer made by or on behalf of such person or any of such person's Affiliates or Associates until such tendered securities are accepted for purchase or exchange thereunder, or (B) any securities if such beneficial ownership (1) arises solely as a result of a revocable proxy delivered in response to a proxy or consent solicitation made pursuant to the liquidation applicable rules and regulations under the Exchange Act, and (2) is not also then reportable on Schedule 13D (or dissolution any successor schedule) under the Exchange Act. Notwithstanding the foregoing provisions of this Section 3.9, a Change in Control shall not be deemed to have occurred by virtue of the Company, any Subsidiary, any employee stock ownership plan or any other employee benefit plan of the Company or any Subsidiary, or any person holding CD Common Stock for or pursuant to the terms of any such employee benefit plan, filing or becoming obligated to file a report under or in response to Schedule 13D or Schedule TO (or any successor schedule, form or report) under the Exchange Act disclosing beneficial ownership by it of shares of CD Common Stock, whether in excess of 50% or otherwise.

Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding there shall occur a Change in Control, Securities shall be purchased by the Company at the option of the Holders thereof Holders, as of the date that is 30 Business Days after the occurrence of the Change in Control (the "Change in Control Purchase Date") at a purchase price equal to 100% of the principal amount of the Securities, plus together with accrued and unpaid interest to, but excluding, the Change in Control Purchase Date (the "Change in Control Purchase Price"), subject to satisfaction by or on behalf of any Holder of the requirements set forth in subsection (c) of this Section 3.8. A " Change in Control" shall be deemed to have occurred if any of the following occurs after the date hereof: (1) any "person" or "group" (as such terms are defined below) is or becomes the "beneficial owner" (as defined below), directly or indirectly, of shares of Voting Stock of the Company representing 50% or more of the total voting power of all outstanding classes of Voting Stock of the Company or has the power, directly or indirectly, to elect a majority of the members of the Board of Directors of the Company; or (2) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the Persons that "beneficially owned" (as defined below), directly or indirectly, shares of Voting Stock of the Company immediately prior to such transaction "beneficially own" (as defined below), directly or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power of all outstanding classes of Voting Stock of the surviving or transferee Person; or (3) there shall occur the holders of capital stock of the Company approve any plan or proposal for the liquidation or dissolution of the CompanyCompany (whether or not otherwise in compliance with the terms hereof).

Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding there shall occur a Change in Control, Securities shall be purchased by the Company at the option of the Holders thereof Holders, as of the date that is 30 Business Days after the occurrence of the Change in Control (the "Change in Control Purchase Date") at a purchase price equal to 100% of the principal amount of the Securities, plus together with accrued and unpaid interest Additional Interest, if any, to, but excluding, the Change in Control Purchase Date (the "Change in Control Purchase Price"), subject to satisfaction by or on behalf of any Holder of the requirements set forth in subsection (c) of this Section 3.8. A " Change in Control" shall be deemed to have occurred if any of the following occurs after the date hereof: (1) the sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Company and its Subsidiaries taken as a whole to any "person" (as such term is used in Section 13(d)(3) of the Exchange Act) other than in the ordinary course of business; (2) the adoption of a plan relating to the liquidation or dissolution of the Company; (3) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any "groupperson" (as such terms are defined below) is or ), becomes the "beneficial owner" (as such term is defined belowin Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that a person shall be deemed to have "beneficial ownership" of all securities that such person has the right to acquire, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition), directly or indirectly, of shares more than 50% of Voting Stock the voting stock of the Company representing 50% or more of the total (measured by voting power rather than number of all outstanding classes of Voting Stock of shares); (4) the Company or has the power, directly or indirectly, to elect first day on which a majority of the members of the Board board of Directors directors (as defined below) of the Company; orCompany are not continuing directors; (25) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Companyany person, or any Person person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which any of the Persons that "beneficially owned" (as defined below), directly or indirectly, shares of Voting Stock outstanding voting stock of the Company is converted into or exchanged for cash, securities or other property, other than any such transaction where the voting stock of the Company outstanding immediately prior to such transaction "beneficially own" is converted into or exchanged for voting stock (as defined below), directly or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power of all outstanding classes of Voting Stock other than disqualified stock) of the surviving or transferee Personperson constituting a majority of the outstanding shares of such voting stock of such surviving or transferee person (immediately after giving effect to such issuance); or (36) there shall occur a termination of listing in which the liquidation Common Stock or dissolution of other common stock into which the CompanySecurities are convertible is neither listed for trading on a United States national securities exchange nor quoted on The Nasdaq National Market.

Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding there shall occur have occurred a Change in Control, Securities shall be purchased by each Holder will have the option to require the Company at the option to purchase all or any part of the Holders thereof such Holder's Securities, as of the date that is 30 50 Business Days after the occurrence of the Change in Control (the "Change in Control Purchase Date") at a purchase price equal to 100% of the principal amount of the Securities, plus accrued and unpaid interest to, but excluding, the Change in Control Purchase Date thereof (the "Change in Control Purchase Price")) plus accrued interest up to but not including the Change in Control Purchase Date, subject to satisfaction by or on behalf of any Holder of the requirements set forth in subsection (c) of this Section 3.8. . A " "Change in Control" shall be deemed to have occurred at such time after the initial issuance of the Securities if any of the following occurs after the date hereofshall occur: (1) any "person" Person or "group" (as such terms are defined below) , other than the Permitted Holders, is or becomes the "beneficial owner" (as defined below), directly or indirectly, of shares of Voting Stock capital stock of the Company representing 50% or more of the total voting power of all outstanding classes shares of Voting Stock capital stock of the Company or has entitling the power, directly or indirectly, holders thereof to elect a majority vote generally in elections of the members of the Board of Directors directors of the Company; or; (2) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the Person or Persons that "beneficially owned," (as defined below), directly or indirectly, shares of Voting Stock of the Company immediately prior to such transaction "beneficially own" (as defined below), directly or indirectly, shares of Voting Stock capital stock of the Company representing at least a majority of the total voting power of all outstanding classes of Voting Stock capital stock of the Company immediately prior to such transaction, "beneficially own," directly or indirectly, shares of capital stock of the Company representing a majority of the total voting power of all classes of capital stock of the surviving or transferee Person; or (3) there shall occur during any consecutive two year period, individuals who at the liquidation or dissolution beginning of such period constituted the Board of Directors of the CompanyCompany (together with any new directors whose election by the Board of Directors of the Company or whose nomination for election by the stockholders of the Company was approved by a vote of a majority of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason (other than by action of the Permitted Holders) to constitute a majority of the Board of Directors of the Company then in office.

Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding there shall occur a Change in Control, Securities shall be purchased each Holder may, at its option and subject to satisfaction by or on behalf of such Holder of the requirements set forth in subsection (c) of this Section 3.8, require the Company at to purchase such Holder's Securities, in whole or in part, and the option of the Holders thereof Company shall purchase such Securities, as of the date that is 30 Business Days after the occurrence of the Change in Control (the "Change in Control Purchase Date") ), at a purchase price equal to 100% of the principal amount of the Securities, plus together with accrued and unpaid interest to, but excluding, the Change in Control Purchase Date (provided that if the Change in Control Purchase Date is an interest payment date, then the interest shall be payable to the Holders in whose names the Securities are registered at the close of business on the record date for such interest payment date) (the "Change in Control Purchase Price"), subject to satisfaction by or on behalf of any Holder of the requirements set forth in subsection (c) of this Section 3.8. A " Change in Control" shall be deemed to have occurred if any of the following occurs after the date hereof: (1) any "person" or "group" (as such terms are defined below) is or becomes the "beneficial owner" (as defined below), directly or indirectly, of shares of Voting Stock of the Company representing 50% or more of the total voting power of all outstanding classes of Voting Stock of the Company or has the power, directly or indirectly, to elect a majority of the members of the Board of Directors of the Company; or (2) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the Persons that "beneficially owned" (as defined below), directly or indirectly, shares of Voting Stock of the Company immediately prior to such transaction "beneficially own" (as defined below), directly or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power of all outstanding classes of Voting Stock of the surviving or transferee Person; or (3) there shall occur the holders of the Capital Stock of the Company approve any plan for liquidation or dissolution of the Company. Notwithstanding anything to the contrary in this Section 3.8(a), a Change in Control shall not be deemed to have occurred if, on or prior to a Conversion Termination Date, if any, either (i) the Conversion Value of the Securities for any five Trading Days during the ten Trading Days immediately preceding the Change in Control is at least equal to 105% of the principal amount of the Securities; or (ii) in the case of a merger or consolidation, all of the consideration excluding cash payments for fractional shares in such merger or consolidation constituting the Change in Control consists of common stock traded on a United States national securities exchange or quoted on The Nasdaq National Market (or which will be so traded or quoted when issued or exchanged in connection with such Change in Control) and as a result of such transaction or transactions the Securities, other than the Additional Conversion Payment, become convertible solely into such common stock.

Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding there shall occur have occurred a Change in Control, Securities shall be purchased by the Company Company, at the option of the Holders thereof Holder thereof, at a purchase price specified in paragraph 7 of the Securities (the "Change in Control Purchase Price"), as of the date that is no later than 30 Business Days after the occurrence of the Change in Control but in no event prior to the date on which such Change in Control occurs (the "Change in Control Purchase Date") at a purchase price equal to the principal amount of the Securities, plus accrued and unpaid interest to, but excluding, the Change in Control Purchase Date (the "Change in Control Purchase Price"), subject to satisfaction by or on behalf of any the Holder of the requirements set forth in subsection (cSection 3.9(c) of this Section 3.8hereof. A " Change in Control" shall be deemed to have occurred if at such time as any of the following occurs after the date hereofevents shall occur: (1) the sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the Company's and the Company's Subsidiaries' assets, taken as a whole, to any "person" person or "group" group (as such terms are defined belowused in Section 13(d) and Section 14(d) of the Exchange Act); (2) the adoption of a plan relating to the Company's liquidation or dissolution; (3) the occurrence of any "going private transaction" with respect to the Common Stock under Rule 13e-3 of the Securities Act; (4) any person or group (as such terms are used in Section 13(d) and Section 14(d) of the Exchange Act), acquires in one or more transactions an amount of Common Stock which is at the time great enough to result in the Common Stock being delisted from the principal United States national securities exchange (or the Nasdaq National Market) on which the shares are then listed; (5) any person or group (as such terms are used in Section 13(d) and Section 14(d) of the Exchange Act), other than one or more Permitted Stack Persons, the Company, its Subsidiaries or their employee benefit plans, or any combination of the foregoing, becomes the beneficial owner (as the term "beneficial owner" (as is defined below), directly under Rule 13d-3 or indirectly, any successor rule or regulation promulgated under the Exchange Act) of shares of Voting Stock more than 50% of the aggregate voting power of the Company's Capital Stock entitled generally to elect at least a majority of its directors; or (6) the Company representing is consolidated with, or merged into, another Person or such other Person is merged into the Company (other than a transaction (i) pursuant to which the holders of 50% or more of the total voting power of all outstanding classes of Voting Stock shares of the Company or has Company's Capital Stock entitled to vote generally in the powerelection of directors immediately prior to such transaction have, directly or indirectly, to elect a majority of the members of the Board of Directors of the Company; or (2) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the Persons that "beneficially owned" (as defined below), directly or indirectly, shares of Voting Stock of the Company immediately prior to such transaction "beneficially own" (as defined below), directly or indirectly, shares of Voting Stock of the Company representing at least a majority 50% or more of the total voting power of all outstanding classes of Voting Stock capital stock of the continuing or surviving corporation entitled to vote generally in the election of directors of such continuing or transferee Person; or surviving corporation immediately after such transaction or (3ii) there shall occur after which one or more Permitted Stack Persons, the liquidation Company, its Subsidiaries or dissolution their employee benefit plans, or any combination of the foregoing, will be the beneficial owners (as the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of more than 50% of the aggregate voting power of the Company's Capital Stock entitled generally to elect at least a majority of its directors).

Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding there shall occur a Change in Control, Securities shall be purchased by the Company at the option of the Holders thereof Holders, as of the date that is 30 Business Days after the occurrence of the Change in Control (the "Change in Control Purchase Date") at a purchase price equal to 100% of the principal amount of the Securities, plus together with accrued and unpaid interest and Additional Interest, if any, to, but excluding, the Change in Control Purchase Date (the "Change in Control Purchase Price"), subject to satisfaction by or on behalf of any Holder of the requirements set forth in subsection (c) of this Section 3.8. . A " "Change in Control" shall be deemed to have occurred if any of the following occurs after the date hereof: (1i) any "person" or "group" (as such terms are defined below) is or becomes the "beneficial owner" (as defined below), directly or indirectly, of shares of Voting Stock of the Company representing 50% or more of the total voting power of all outstanding classes of Voting Stock of the Company or has the power, directly or indirectly, to elect a majority of the members of the Board of Directors of the Company; or (2ii) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the Persons that "beneficially owned" (as defined below), directly or indirectly, shares of Voting Stock of the Company immediately prior to such transaction "beneficially own" (as defined below), directly or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power of all outstanding classes of Voting Stock of the surviving or transferee Person; or (3) there shall occur the liquidation or dissolution of the Company.least

Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding there shall occur a Change in Control, Securities shall be purchased by the Company at the option of the Holders thereof Holders, as of the date that is 30 35 Business Days after the occurrence of the Change in Control (the "Change in Control Purchase Date") at a purchase price equal to 100% of the principal amount of the Securities, plus together with accrued and unpaid interest to, but excluding, the Change in Control Purchase Date (the "Change in Control Purchase Price"), subject to satisfaction by or on behalf of any Holder of the requirements set forth in subsection (c) of this Section 3.8. . At the option of the Company, the Change in Control Purchase Price may be paid in cash or, subject to the fulfillment by the Company of the conditions set forth in Section 3.8(d), by delivery of shares of Common Stock, or a combination of cash and Common Stock, having a fair market value equal to the Change in Control Purchase Price. A " "Change in Control" shall be deemed to have occurred if any of the following occurs after the date hereof: (1) any "person" or "group" (as such terms are defined below) is or becomes the "beneficial owner" (as defined below), directly or indirectly, of shares of Voting Stock of the Company representing 50% or more of the total voting power of all outstanding classes of Voting Stock of the Company or has the power, directly or indirectly, to elect a majority of the members of the Board of Directors of the Company; or (2) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the Persons that "beneficially owned" (as defined below), directly or indirectly, shares of Voting Stock of the Company immediately prior to such transaction "beneficially own" (as defined below), directly or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power of all outstanding classes of Voting Stock of the surviving or transferee Person; or (3) there shall occur the holders of Capital Stock of the Company approve any plan or proposal for the liquidation or dissolution of the CompanyCompany (whether or not otherwise in compliance with the terms hereof).

Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding on or prior to May 18, 2004 there shall occur have occurred a Change in Control, Securities shall be purchased by the Company Company, at the option of the Holders thereof Holder thereof, at a purchase price in cash specified in paragraph 6 of the Securities (the "Change in Control Purchase Price"), as of the a date that is 30 no later than 35 Business Days after the occurrence of the Change in Control (the "Change in Control Purchase Date") at a purchase price equal to the principal amount of the Securities, plus accrued and unpaid interest to, but excluding, no earlier than the Change in Control Purchase Date (the "Change in Control Purchase Price")Control, subject to satisfaction by or on behalf of any the Holder of the requirements set forth in subsection (c) of this Section 3.8. 1111(c). A " "Change in Control" shall be deemed to have occurred if any at such time as either of the following occurs after the date hereofevents shall occur: (1i) There shall be consummated any "person" share exchange, consolidation or "group" (as such terms are defined below) is merger of the Company pursuant to which the Common Stock would be converted into cash, securities or becomes other property, in each case other than a share exchange, consolidation or merger of the "beneficial owner" (as defined below)Company in which the holders of the Common Stock immediately prior to the share exchange, consolidation or merger have, directly or indirectly, of shares of Voting Stock of the Company representing 50% or more of the total voting power of all outstanding classes of Voting Stock of the Company or has the power, directly or indirectly, to elect a majority of the members of the Board of Directors of the Company; or (2) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the Persons that "beneficially owned" (as defined below), directly or indirectly, shares of Voting Stock of the Company immediately prior to such transaction "beneficially own" (as defined below), directly or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power in the aggregate of all outstanding classes of Voting Capital Stock of the continuing or surviving corporation immediately after the share exchange, consolidation or transferee Personmerger; or (3ii) there shall occur Any person (for the liquidation purposes of this Section 1111 only, as the term "person" is used in Section 13(d)(3) or dissolution Section 14(d)(2) of the Exchange Act), including its Affiliates and Associates, other than the Company, its Subsidiaries or any Permitted Holder, files a Schedule TO (or any successor schedule, form or report under the Exchange Act) or other report, including a Schedule 13D (or any successor schedule, form or report under the Exchange Act) disclosing that such person has become the direct or indirect beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of 50% or more of the voting power of the Common Stock then outstanding or other Capital Stock into which the Company's Common Stock is reclassified or changed.

Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding there shall occur a Change in Control, Securities shall be purchased by the Company at the option of the Holders thereof as of the date (the "CHANGE IN CONTROL PURCHASE DATE") that is not less than 20 nor more than 30 Business Days after the date on which the Company provides Holders notice of the occurrence of the a Change in Control (or if the "Company has not therefore provided such, the 40th Business Day following the occurrence of a Change in Control Purchase Date"Control) at a purchase price equal to the principal amount of the Securities, plus accrued and unpaid interest to, but excluding, the Change in Control Purchase Date (the "Change in Control Purchase PriceCHANGE IN CONTROL PURCHASE PRICE"), subject to satisfaction by or on behalf of any Holder of the requirements set forth in subsection (c) of this Section 3.8. . A " "Change in Control" shall be deemed to have occurred if any of the following occurs after the date hereof: (1) any "person" or "group" (as such terms are defined below) ), other than one or more Permitted Holders, is or becomes the "beneficial owner" (as defined below), directly or indirectly, of shares of Voting Stock of the Company representing 50% or more of the total voting power of all outstanding classes of Voting Stock of the Company or such person or group has the power, directly or indirectly, to elect a majority of the members of the Board of Directors of the Company; or (2) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the Persons that "beneficially owned" (as defined below), directly or indirectly, shares of Voting Stock of the Company immediately prior to such transaction "beneficially own" (as defined below), directly or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power of all outstanding classes of Voting Stock of the surviving or transferee Person; or (3) there shall occur the liquidation or dissolution of the Company.

Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding there shall occur have occurred a Change in Control, Securities shall be purchased by the Company at the option of the Holders thereof as of Holder thereof, on the date that is 30 40 Business Days after the occurrence of the Change in Control (the "Change in Control Purchase Date") at a purchase price equal to the principal amount of the Securities, plus accrued and unpaid interest to, but excluding, the Change in Control Purchase Date (the "Change in Control Purchase Price")) equal to the principal amount thereof plus accrued interest up to but not including the Change in Control Purchase Date, subject to satisfaction by or on behalf of any Holder of the requirements set forth in subsection (c) of this Section 3.8. A " Change in Control" shall be deemed to have occurred if any at such time after the original issuance of the following occurs after the date hereofSecurities as there shall occur: (1) the acquisition by any person (including any syndicate or group deemed to be a "person" under Section 13(d)(3) or "group" 14(d)(2) of the Securities Exchange Act of 1934, as amended (as such terms are defined below) is or becomes the "Exchange Act"), or any successor provision, but excluding Xxxxx X. Xxxx, Xxxx X. Xxxxxx, or a person or group controlled by them or either of them (or their heirs or legatees)) of beneficial owner" (as defined below)ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of Voting Stock capital stock of the Company representing entitling such person to exercise more than 50% or more of the total voting power of all outstanding classes shares of Voting Stock capital stock of the Company or has entitling the power, directly or indirectly, holders thereof to elect a majority vote generally in elections of the members of the Board of Directors of the Companydirectors; or (2) any consolidation of the Company consolidates with, or merges with or merger of the Company into, any other person, any merger of another Person person into the Company, or the Company sellsany sale, assigns, conveys, transfers, leases lease or otherwise disposes exchange of all or substantially all of the property and assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any such event Company to another person (other than pursuant (i) sales or leases of property to a transaction in which the Persons that "beneficially owned" (as defined below), directly or indirectly, shares of Voting Stock franchisees of the Company immediately prior to such transaction "beneficially own" in the ordinary course of business or (as defined below)ii) a merger which (x) does not result in any reclassification, directly conversion, exchange or indirectly, cancellation of outstanding shares of Voting Stock capital stock of the Company representing at least a majority or (y) is effected primarily to change the jurisdiction of incorporation of the total voting power Company and results in a reclassification, conversion or exchange of all outstanding classes shares of Voting Common Stock solely into shares of common stock of the surviving or transferee Person; or (3) there shall occur the liquidation or dissolution of the Companyentity).

Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding there shall occur a Change in Control, Securities shall be purchased by the Company at the option of the Holders thereof Holders, as of the date that is 30 Business Days after the occurrence of the Change in Control (the "Change in Control Purchase Date") at a purchase price equal to the principal amount of the Securities, plus accrued and unpaid interest to, but excluding, the Change in Control Purchase Date (the "Change in Control Purchase Price"), subject to satisfaction by or on behalf of any Holder of the requirements set forth in subsection (c) of this Section 3.8. A " Change in Control" shall be deemed to have occurred if any of the following occurs after the date hereof: (1) any "person" or "group" (as such terms are defined below) is or becomes the "beneficial owner" (as defined below), directly or indirectly, of shares of Voting Stock of the Company representing 50% or more of the total voting power of all outstanding classes of Voting Stock of the Company or has the power, directly or indirectly, to elect a majority of the members of the Board of Directors of the Company; or (2) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the Persons that "beneficially owned" (as defined below), directly or indirectly, shares of Voting Stock of the Company immediately prior to such transaction "beneficially own" (as defined below), directly or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power of all outstanding classes of Voting Stock of the surviving or transferee Person; or (3) there shall occur the holders of capital stock of the Company approve any plan or proposal for the liquidation or dissolution of the CompanyCompany (whether or not otherwise in compliance with the terms hereof).

Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding there shall occur a Change in Control, Securities shall be purchased by the Company at the option of the Holders thereof as of the date that is 30 Business Days after the occurrence of the Change in Control (the "Change in Control Purchase Date") at a purchase price equal to the principal amount of the Securities, plus accrued and unpaid interest to, but excluding, the Change in Control Purchase Date (the "Change in Control Purchase Price"), subject to satisfaction by or on behalf of any Holder of the requirements set forth in subsection (c) of this Section 3.8. . A " "Change in Control" shall be deemed to have occurred if any of the following occurs after the date hereof: (1) any "person" or "group" (as such terms are defined below) is or becomes the "beneficial owner" (as defined below), directly or indirectly, of shares of Voting Stock of the Company representing 50% or more of the total voting power of all outstanding classes of Voting Stock of the Company or has the power, directly or indirectly, to elect a majority of the members of the Board of Directors of the Company; or (2) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the Persons that "beneficially owned" (as defined below), directly or indirectly, shares of Voting Stock of the Company immediately prior to such transaction "beneficially own" (as defined below), directly or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power of all outstanding classes of Voting Stock of the surviving or transferee Person; or (3) there shall occur the liquidation or dissolution of the Company.

Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding there shall occur a Change in Control, Securities shall be purchased by the Company at the option of the Holders thereof as of the date that is 30 Business Days after the occurrence of the Change in Control (the "Change in Control Purchase Date") at a purchase price equal to the principal amount of the Securities, plus accrued and unpaid interest to, but excluding, the Change in Control Purchase Date (the "Change in Control Purchase Price"), subject to satisfaction by or on behalf of any Holder of the requirements set forth in subsection (c) of this Section 3.8. 4.08. A " "Change in Control" shall be deemed to have occurred if any of the following occurs after the date hereof: (1) any "person" or "group" (as such terms are defined below) is or becomes the "beneficial owner" (as defined below), directly or indirectly, of shares of Voting Stock of the Company Parent representing 50% or more of the total voting power of all outstanding classes of Voting Stock of the Company Parent or such person or group has the power, directly or indirectly, to elect a majority of the members of the Board of Directors of the CompanyParent; or (2) the Company Parent consolidates with, or merges with or into, another Person or the Company Parent sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Companyits assets, or any Person consolidates with, or merges with or into, the CompanyParent, in any such event other than pursuant to a transaction in which the Persons that "beneficially owned" (as defined below), directly or indirectly, shares of Voting Stock of the Company immediately prior to such transaction "beneficially own" (as defined below), directly or indirectly, shares of Voting Stock of the Company Parent representing at least a majority of the total voting power of all outstanding classes of Voting Stock of the surviving or transferee Person; or (3) there shall occur the liquidation or dissolution of the CompanyParent.

Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding there shall occur a Change in Control, Securities shall be purchased by the Company at the option of the Holders thereof Holders, as of the date that is 30 Business Days after the occurrence of the Change in Control (the "Change in Control Purchase Date") at a purchase price equal to 100% of the principal amount of the Securities, plus accrued and unpaid interest to, but excluding, the Change in Control Purchase Date (the "Change in Control Purchase Price"), subject to satisfaction by or on behalf of any Holder of the requirements set forth in subsection (c) of this Section 3.8. . A " "Change in Control" shall be deemed to have occurred if any of the following occurs after the date hereof: (1) any "person" or "group" (as such terms are defined below) is or becomes the "beneficial owner" (as defined below), directly or indirectly, of shares of Voting Stock of the Company representing 50% or more of the total voting power of all outstanding classes of Voting Stock of the Company or has the power, directly or indirectly, to elect a majority of the members of the Board of Directors of the Company; or (2) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the Persons that "beneficially owned" (as defined below), directly or indirectly, shares of Voting Stock of the Company immediately prior to such transaction "beneficially own" (as defined below), directly or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power of all outstanding classes of Voting Stock of the surviving or transferee Person; or (3) there shall occur the holders of capital stock of the Company approve any plan or proposal for the liquidation or dissolution of the CompanyCompany (whether or not otherwise in compliance with the terms hereof).

Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding on or prior to June 23, 2006 there shall occur have occurred a Change in Control, all or a portion of the Securities of any Holder shall be purchased by the Company Company, at the option of such Holder, at a purchase price specified in paragraph 6 of the Holders thereof Securities (the "Change in Control Purchase Price"), as of the date that is 30 35 Business Days after the occurrence of the Change in Control (the "Change in Control Purchase Date") at a purchase price equal to the principal amount of the Securities, plus accrued and unpaid interest to, but excluding, the Change in Control Purchase Date (the "Change in Control Purchase Price"), subject to satisfaction by or on behalf of any the Holder of the requirements set forth in subsection (c) of this Section 3.83.09(c). A " Change in Control" shall be deemed to have occurred if any at such time as either of the following occurs after the date hereofevents shall occur: (1i) any "person" , including its affiliates and associates, other than Permitted Holders, files a Schedule 13D or "group" TO (as or any successor schedule, form or report under the Exchange Act) disclosing that such terms are defined below) is or becomes person has become the "beneficial owner" (as defined below), directly or indirectly, owner of shares of Voting Stock of the Company representing 50% or more of the total voting power in the aggregate of all outstanding classes of Voting Capital Stock of the Company then outstanding normally entitled to vote in elections of directors, with certain exceptions, or has any Permitted Holder files such as schedule, form or report in connection with a transaction or event, as a result of which the powerClass B Common Stock ceases (or, upon consummation of or immediately following such transaction or event, will cease) to be listed on a United States national securities exchange or approved for quotation on the Nasdaq National Market or any similar United States system for automated dissemination of quotations of securities prices; or (ii) there shall be consummated any consolidation or merger of the Company pursuant to which the Class B Common Stock would be converted into cash, securities or other property, in each case other than a consolidation or merger of the Company in which (1) the holders of all classes of Common Stock immediately prior to the consolidation or merger have, directly or indirectly, to elect a majority of the members of the Board of Directors of the Company; or (2) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the Persons that "beneficially owned" (as defined below), directly or indirectly, shares of Voting Stock of the Company immediately prior to such transaction "beneficially own" (as defined below), directly or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power in the aggregate of all outstanding classes of Voting Capital Stock of the continuing or surviving corporation normally entitled to vote in elections of directors immediately after the consolidation or transferee Person; merger and (2) the shares of Class B Common Stock shall be converted into common stock which is (or (3, upon consummation of or immediately following such consolidation or merger, will be) there shall occur listed on a United States national securities exchange or approved for quotation on the liquidation Nasdaq National Market or dissolution any similar United States system for automated dissemination of the Companyquotations of securities prices.

Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding on or prior to October 1, 2006 there shall occur have occurred a Change in Control, Securities shall be purchased by the Company Company, at the option of the Holders thereof as of the date that is 30 Business Days after the occurrence of the Change in Control (the "Change in Control Purchase Date") Holder thereof, at a purchase price equal to the principal amount specified in paragraph 7 of the Securities, plus accrued and unpaid interest to, but excluding, the Change in Control Purchase Date Securities (the "Change in Control Purchase Price"), as of the date that is no later than 35 Business Days after the occurrence of the Change in Control but in no event prior to the date on which such Change in Control occurs (the "Change in Control Purchase Date"), subject to satisfaction by or on behalf of any the Holder of the requirements set forth in subsection (c) of this Section 3.83.09(c). A " Change in Control" shall be deemed to have occurred if any at such time as either of the following occurs after the date hereofevents shall occur: (1i) Any person, including its Affiliates and Associates, other than the Company or its subsidiaries, files on Schedule 13D or Schedule TO (or any successor schedule, form or report) pursuant to the Exchange Act, disclosing that such person (for the purposes of this Section 3.09 only, as the term "person" is used in Section 13(d)(3) or "group" Section 14(d)(2) of the Exchange Act) has become the beneficial owner (as such terms are defined below) is or becomes the term "beneficial owner" (as is defined below), directly under Rule 13d-3 or indirectly, any successor rule or regulation promulgated under the Exchange Act) of shares of Voting Stock of the Company representing 50% or more of the total aggregate voting power of all outstanding classes of Voting the Common Stock and other Capital Stock of the Company with equivalent voting rights then outstanding; provided, however, that a person shall not be -------- ------- deemed beneficial owner of, or has to own beneficially, (A) any securities tendered pursuant to a tender or exchange offer made by or on behalf of such person or any of such person's Affiliates or Associates until such tendered securities are accepted for purchase or exchange thereunder, or (B) any securities if such beneficial ownership (1) arises solely as a result of a revocable proxy delivered in response to a proxy or consent solicitation made pursuant to the powerapplicable rules and regulations under the Exchange Act, and (2) is not also then reportable on Schedule 13D (or any successor schedule) under the Exchange Act; or (ii) There shall be consummated any share exchange, consolidation or merger of the Company pursuant to which the Common Stock would be converted into cash, securities or other property, in each case other than a share exchange, consolidation or merger of the Company in which the holders of the Common Stock and other capital stock with equivalent voting rights, immediately prior to the share exchange, consolidation or merger have, directly or indirectly, to elect a majority of the members of the Board of Directors of the Company; or (2) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the Persons that "beneficially owned" (as defined below), directly or indirectly, shares of Voting Stock of the Company immediately prior to such transaction "beneficially own" (as defined below), directly or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power in the aggregate of all outstanding classes of Voting Capital Stock of the continuing or surviving corporation immediately after the share exchange, consolidation or transferee Person; or (3) there merger. Notwithstanding the foregoing provisions of this Section 3.09, a Change in Control shall occur the liquidation or dissolution not be deemed to have occurred by virtue of the CompanyCompany or any Subsidiary, any employee stock ownership plan or any other employee benefit plan of the Company or any Subsidiary, or any person holding Common Stock for or pursuant to the terms of any such employee benefit plan, filing or becoming obligated to file a report under or in response to Schedule 13D or Schedule TO (or any successor schedule, form or report) under the Exchange Act disclosing beneficial ownership by it of shares of Common Stock, whether in excess of 50% or otherwise.

Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding there shall occur a Change in Control, Securities shall be purchased by the Company at the option of the Holders thereof as of the date (the "CHANGE IN CONTROL PURCHASE DATE") that is not less than 20 nor more than 30 Business Days after the date on which the Company provides Holders notice of the occurrence of the a Change in Control (or if the "Company has not therefore provided such, the 40th Business Day following the occurrence of a Change in Control Purchase Date"Control) at a purchase price equal to the principal amount of the Securities, plus accrued and unpaid interest to, but excluding, the Change in Control Purchase Date (the "Change in Control Purchase PriceCHANGE IN CONTROL PURCHASE PRICE"), subject to satisfaction by or on behalf of any Holder of the requirements set forth in subsection (c) of this Section 3.8. . A " "Change in Control" shall be deemed to have occurred if any of the following occurs after the date hereof: (1) any "person" or "group" (as such terms are defined below) ), other than one or more Permitted Holders, is or becomes the "beneficial owner" (as defined below), directly or indirectly, of shares of Voting Stock of the Company representing 50% or more of the total voting power of all outstanding classes of Voting Stock of the Company or such person or group has the power, directly or indirectly, to elect a majority of the members of the Board of Directors of the Company; or (2) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the CompanyCompany to another Person, or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the Persons that "beneficially owned" (as defined below), directly or indirectly, shares of Voting Stock of the Company immediately prior to such transaction "beneficially own" (as defined below), directly or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power of all outstanding classes of Voting Stock of the surviving or transferee Person; or (3) there shall occur the liquidation or dissolution of the Company.

Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding there shall occur a Change in Control, Securities shall be purchased by the Company at the option of the Holders thereof Holders, as of the date that is 30 Business Days after the occurrence of the Change in Control (the "Change in Control Purchase Date") at a purchase price equal to 100% of the principal amount of the Securities, plus together with accrued and unpaid interest to, but excluding, the Change in Control Purchase Date (the "Change in Control Purchase Price"), subject to satisfaction by or on behalf of any Holder of the requirements set forth in subsection (c) of this Section 3.8. . A " "Change in Control" shall be deemed to have occurred if any of the following occurs after the date hereof: (1) any "person" or "group" (as such terms are defined below) is or becomes the "beneficial owner" (as defined below), directly or indirectly, of shares of Voting Stock of the Company representing 50% or more of the total voting power of all outstanding classes of Voting Stock of the Company or has the power, directly or indirectly, to elect a majority of the members of the Board of Directors of the Company; or (2) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the Persons that "beneficially owned" (as defined below), directly or indirectly, shares of Voting Stock of the Company immediately prior to such transaction "beneficially own" (as defined below), directly or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power of all outstanding classes of Voting Stock of the surviving or transferee Person; or (3) there shall occur the holders of capital stock of the Company approve any plan or proposal for the liquidation or dissolution of the CompanyCompany (whether or not otherwise in compliance with the terms hereof).

Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding there shall occur a Change in Control, Securities shall be purchased by the Company at the option of the Holders thereof as of the date that is 30 Business Days after the occurrence of the Change in Control (the "Change in Control Purchase Date") at a purchase price equal to 100% of the principal amount of the Securities, plus accrued and unpaid interest to, but excluding, the Change in Control Purchase Date thereof (the "Change in Control Purchase Price")) plus accrued interest up to but not including the Change in Control Purchase Date, subject to satisfaction by or on behalf of any Holder of the requirements set forth in subsection (c) of this Section 3.8. . A " "Change in Control" shall be deemed to have occurred if any of the following occurs after the date hereofInitial Issuance Date: (1) the consolidation with or merger by the Company into any "person" other Person, or "group" (as any other Person merges into the Company, unless the stockholders of the Company immediately before such terms are defined below) is or becomes the "beneficial owner" (as defined below)transaction own, directly or indirectlyindirectly immediately following such transaction, of shares of Voting Stock at least a majority of the Company representing 50% or more of the total combined voting power of all the outstanding classes voting securities entitled to vote generally in the election of Voting Stock directors of the Company or has the power, directly or indirectly, to elect a majority of the members of the Board of Directors of the Company; orPerson resulting from such transaction; (2) the Company consolidates withsale, lease or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes transfer of all or substantially all of the assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the Persons that "beneficially owned" (as defined below), directly or indirectly, shares to any "person" or "group", within the meaning of Voting Stock Section 13(d)(3) and 14(d)(2) of the Exchange Act or any successor provision to either of the foregoing, including any group acting for the purpose of acquiring, holding or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act, and excluding any wholly owned Subsidiary of the Company; (3) the approval by the requisite stockholders of the Company immediately prior of a plan of liquidation or dissolution of the Company; (4) any "person" or "group," within the meaning of Section 13(d) and 14(d)(2) of the Exchange Act or any successor provision to such transaction either of the foregoing, including any group acting for the purpose of acquiring, holding or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act, becomes the "beneficially ownbeneficial owner," (as defined below)in Rule 13d-3 under the Exchange Act, directly or indirectly, shares of Voting Stock of the Company representing at least a majority more than 50% of the total voting power of all outstanding classes of Voting Stock our voting stock and/or warrants or options to acquire such voting stock, calculated on a fully diluted basis, unless, as a result of such transaction, the ultimate direct or indirect ownership of the surviving or transferee PersonCompany is substantially the same immediately after such transaction as it was immediately prior to such transaction; or (5) during any period of two consecutive years, individuals who at the beginning of such period constituted our Board of Directors, together with any new directors whose election or appointment by such board or whose nomination for election by stockholders of the Company was approved by a vote of a majority of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority of the Board of Directors then in office. (b) Within 10 Business Days after the occurrence of a Change in Control, the Company shall mail a written notice of the Change in Control to the Trustee and to each Holder (and to beneficial owners as required by applicable law) and shall cause a copy of such notice to be published in a daily newspaper of national circulation. The notice shall include the form of a Change in Control Purchase Notice to be completed by the Holder and shall state: (1) the date of such Change in Control and, briefly, the events causing such Change in Control; (2) the date by which the Change in Control Purchase Notice pursuant to this Section 3.8 must be given; (3) there shall occur the liquidation or dissolution Change in Control Purchase Date; (4) the Change in Control Purchase Price; (5) briefly, the conversion rights of the CompanySecurities; (6) the name and address of each Paying Agent and Conversion Agent; (7) the then current Conversion Price; (8) that Securities as to which a Change in Control Purchase Notice has been given may be converted into Common Stock only to the extent that the Change in Control Purchase Notice has been withdrawn in accordance with the terms of this Indenture; (9) the procedures that the Holder must follow to exercise rights under this Section 3.8; (10) the procedures for withdrawing a Change in Control Purchase Notice, including a form of notice of withdrawal; and (11) that the Holder must satisfy the requirements set forth in the Securities in order to convert the Securities. If any of the Securities is in the form of a global Security, then the Company shall modify such notice to the extent necessary to accord with the procedures of the Depositary applicable to the repurchase of global securities. (c) A Holder may exercise its rights specified in subsection (a) of this Section 3.8 upon delivery of a written notice (which shall be in substantially the form included in Exhibit A hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of global Securities, may be delivered electronically or by other means in accordance with the Depositary's customary procedures) of the exercise of such rights (a "Change in Control Purchase Notice") to any Paying Agent at any time prior to the close of business on the Business Day next preceding the Change in Control Purchase Date. The delivery of such Security to any Paying Agent (together with all necessary endorsements) at the office of such Paying Agent shall be a condition to the receipt by the Holder of the Change in Control Purchase Price therefor. The Company shall purchase from the Holder thereof, pursuant to this Section 3.8, a portion of a Security if the principal amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of this Indenture that apply to the purchase of all of a Security pursuant to Sections 3.8 through 3.13 also apply to the purchase of such portion of such Security. Notwithstanding anything herein to the contrary, any Holder delivering to a Paying Agent the Change in Control Purchase Notice contemplated by this subsection (c) shall have the right to withdraw such Change in Control Purchase Notice in whole or in a portion thereof that is $1,000 or in an integral multiple thereof at any time prior to the close of business on the Business Day next preceding the Change in Control Purchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.9. A Paying Agent shall promptly notify the Company of the receipt by it of any Change in Control Purchase Notice or written withdrawal thereof. Anything herein to the contrary notwithstanding, in the case of global Securities, any Change in Control Purchase Notice may be delivered or withdrawn and such Securities may be surrendered or delivered for purchase in accordance with the applicable procedures of the Depositary as in effect from time to time.

Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding on or prior to September 11, 2006 there shall occur have occurred a Change in Control, Securities shall be purchased by the Company Company, at the option of the Holders thereof as of the date that is 30 Business Days after the occurrence of the Change in Control (the "Change in Control Purchase Date") Holder thereof, at a purchase price equal to the principal amount specified in paragraph 7 of the Securities, plus accrued and unpaid interest to, but excluding, the Change in Control Purchase Date Securities (the "Change in Control Purchase Price"), as of the date that is no later than 35 Business Days after the occurrence of the Change in Control but in no event prior to the date on which such Change in Control occurs (the "Change in Control Purchase Date"), subject to satisfaction by or on behalf of any the Holder of the requirements set forth in subsection (c) of this Section 3.83.09(c). A " Change in Control" shall be deemed to have occurred if any at such time as either of the following occurs after the date hereofevents shall occur: (1i) Any person, including its Affiliates and Associates, other than the Company or its subsidiaries, files on Schedule 13D or Schedule TO (or any successor schedule, form or report) pursuant to the Exchange Act, disclosing that such person (for the purposes of this Section 3.09 only, as the term "person" is used in Section 13(d)(3) or "group" Section 14(d)(2) of the Exchange Act) has become the beneficial owner (as such terms are defined below) is or becomes the term "beneficial owner" (as is defined below), directly under Rule 13d-3 or indirectly, any successor rule or regulation promulgated under the Exchange Act) of shares of Voting Stock of the Company representing 50% or more of the total aggregate voting power of all outstanding classes of Voting the Common Stock and other Capital Stock of the Company with equivalent voting rights then outstanding; provided, however, that a person shall not be deemed beneficial owner of, or has to own beneficially, (A) any securities tendered pursuant to a tender or exchange offer made by or on behalf of such person or any of such person's Affiliates or Associates until such tendered securities are accepted for purchase or exchange thereunder, or (B) any securities if such beneficial ownership (1) arises solely as a result of a revocable proxy delivered in response to a proxy or consent solicitation made pursuant to the powerapplicable rules and regulations under the Exchange Act, and (2) is not also then reportable on Schedule 13D (or any successor schedule) under the Exchange Act; or (ii) There shall be consummated any share exchange, consolidation or merger of the Company pursuant to which the Common Stock would be converted into cash, securities or other property, in each case other than a share exchange, consolidation or merger of the Company in which the holders of the Common Stock and other capital stock with equivalent voting rights, immediately prior to the share exchange, consolidation or merger have, directly or indirectly, to elect a majority of the members of the Board of Directors of the Company; or (2) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the Persons that "beneficially owned" (as defined below), directly or indirectly, shares of Voting Stock of the Company immediately prior to such transaction "beneficially own" (as defined below), directly or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power in the aggregate of all outstanding classes of Voting Capital Stock of the continuing or surviving corporation immediately after the share exchange, consolidation or transferee Person; or (3) there merger. Notwithstanding the foregoing provisions of this Section 3.09, a Change in Control shall occur the liquidation or dissolution not be deemed to have occurred by virtue of the CompanyCompany or any Subsidiary, any employee stock ownership plan or any other employee benefit plan of the Company or any Subsidiary, or any person holding Common Stock for or pursuant to the terms of any such employee benefit plan, filing or becoming obligated to file a report under or in response to Schedule 13D or Schedule TO (or any successor schedule, form or report) under the Exchange Act disclosing beneficial ownership by it of shares of Common Stock, whether in excess of 50% or otherwise.

Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding on or prior to June 12, 2001 there shall occur have occurred a Change in Control, Securities shall be purchased purchased, at the option of the Holder thereof, by the Company at the option purchase price specified in paragraph 6 of the Holders thereof as of Securities (the "CHANGE IN CONTROL PURCHASE PRICE"), on the date that is 30 35 Business Days after the occurrence of the Change in of Control (the "Change in Control Purchase Date") at a purchase price equal to the principal amount of the Securities, plus accrued and unpaid interest to, but excluding, the Change in Control Purchase Date (the "Change in Control Purchase PriceCHANGE IN CONTROL PURCHASE DATE"), subject to satisfaction by or on behalf of any the Holder of the requirements set forth in subsection (c) of this Section 3.8. 3.09(c). A " Change in Control"CHANGE IN CONTROL" shall be deemed to have occurred if any at such time after the original issuance of the Securities as either of the following occurs after the date hereofevents shall occur: (1i) There shall be consummated any "person" consolidation or "group" (as such terms are defined below) merger of the Company in which the Company is not the continuing or becomes surviving corporation or pursuant to which the "beneficial owner" (as defined below)Common Stock would be converted into cash, securities or other property, other than a consolidation or merger of the Company in which the holders of Common Stock immediately prior to the consolidation or merger have, directly or indirectly, at least a majority of shares of Voting the Common Stock of the continuing or surviving corporation immediately after such consolidation or merger; or (ii) There is a report filed by any person, including its Affiliates and Associates, other than Xxxx/Chilmark, the Company, any Subsidiary of the Company, or any employee benefit plan of either the Company representing or any Subsidiary of the Company, on Schedule 13D or 14D-1 (or any successor schedule, form or report) pursuant to the Exchange Act, disclosing that such person (for the purposes of this Section 3.09 only, the term "person" shall include a "person" within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision to either of the foregoing) has become the beneficial owner (as the term "BENEFICIAL OWNER" is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of 50% or more of the total voting power of all outstanding classes the Company's Common Stock then outstanding; PROVIDED, HOWEVER, that a person shall not be deemed beneficial owner of, or to own beneficially, (A) any securities tendered pursuant to a tender or exchange offer made by or on behalf of Voting Stock such person or any of such person's Affiliates or Associates until such tendered securities are accepted for purchase or exchange thereunder, or (B) any securities if such beneficial ownership (1) arises solely as a result of a revocable proxy delivered in response to a proxy or consent solicitation made pursuant to, and in accordance with, the applicable rules and regulations under the Exchange Act, and (2) is not also then reportable on Schedule 13D (or any successor schedule, form or report) under the Exchange Act. Notwithstanding the foregoing provisions of this Section 3.09, a Change in Control shall not be deemed to have occurred if at any time the Company, any Subsidiary, any employee stock ownership plan or any other employee benefit plan of the Company or has the power, directly or indirectly, to elect a majority of the members of the Board of Directors of the Company; or (2) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Companyany Subsidiary, or any Person consolidates with, person holding Common Stock for or merges with or into, pursuant to the Company, in terms of any such event other than pursuant employee benefit plan files or becomes obligated to file a transaction report under or in which response to Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report) under the Persons that "beneficially owned" (as defined below), directly or indirectly, Exchange Act disclosing beneficial ownership by it of shares of Voting Stock Common Stock, whether in excess of the Company immediately prior to such transaction "beneficially own" (as defined below), directly 50% or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power of all outstanding classes of Voting Stock of the surviving or transferee Person; or (3) there shall occur the liquidation or dissolution of the Companyotherwise.

Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding there shall occur a Change in Control, Securities shall be purchased by the Company at the option of the Holders thereof as of the date that is no less than 30 Business Days after and no more than 60 days from the occurrence date such notice is mailed or delivered as required by paragraph (b) of the Change in Control this Section 4.07, (the "Change in Control Purchase Date") at a purchase price equal to the principal amount of the Securities, plus accrued and unpaid interest to, but excluding, the Change in Control Purchase Date (the "Change in Control Purchase Price"), subject to satisfaction by or on behalf of any Holder of the requirements set forth in subsection (c) of this Section 3.8. 4.07. A " "Change in Control" shall be deemed to have occurred if any of the following occurs after the date hereof: (1) any "person" or "group" (as such terms are defined below) is or becomes the "beneficial owner" (as defined below), directly or indirectly, of shares of Voting Stock of the Company representing 50% or more of the total voting power of all outstanding classes of Voting Stock of the Company or such person or group has the power, directly or indirectly, to elect a majority of the members of the Board of Directors of the Company; or (2) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the Persons that "beneficially owned" (as defined below), directly or indirectly, shares of Voting Stock of the Company immediately prior to such transaction "beneficially own" (as defined below), directly or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power of all outstanding classes of Voting Stock of the surviving or transferee Person; or (3) there shall occur the liquidation or dissolution of the Company.

Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding there shall occur have occurred a Change in ControlControl (as hereinafter defined), Securities shall be purchased repurchased by the Company Company, at the option of the Holders thereof as of Holder thereof, at a purchase price (the date that is 30 Business Days after the occurrence of the "Change in Control Purchase Price") equal to the principal amount thereof plus accrued and unpaid interest, if any (including contingent interest, if any), and Liquidated Damages, if any, thereon, up to and including the date (the "Change in Control Purchase Date") at a purchase price equal to fixed by the principal amount of Company that is not less than 45 days nor more than 60 days after the Securities, plus accrued and unpaid interest to, but excluding, the Change date notice is given (as set forth in Control Purchase Date (the "Change in Control Purchase Price"3.09(b)), subject to satisfaction by or on behalf of any the Holder of the requirements set forth in subsection (c) Section 3.09(c). Whenever in this Indenture there is a reference to the principal of any Security as of any time, such reference shall be deemed to include reference to the Change in Control Purchase Price payable in respect of such Security to the extent that such Change in Control Purchase Price is, was or would be payable at such time, and express mention of the Change in Control Purchase Price in any provision of this Section 3.8Indenture shall not be construed as excluding the Change in Control Purchase Price in those provisions of this Indenture when such express mention is not made. A " Change in Control" shall be deemed to have occurred if at such time after the original issuance of the Securities as any of the following occurs after the date hereofoccur: (1i) any "person" sale, lease, exchange or "group" other transfer (as such terms are defined belowin one transaction or a series of related transactions) is or becomes the "beneficial owner" (as defined below), directly or indirectly, of shares of Voting Stock of the Company representing 50% or more of the total voting power of all outstanding classes of Voting Stock of the Company or has the power, directly or indirectly, to elect a majority of the members of the Board of Directors of the Company; or (2) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the CompanyCompany and its subsidiaries, taken as a whole, to any person or any Person consolidates withgroup of related persons, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the Persons that "beneficially owned" (as defined belowin Section 13(d) of the Exchange Act (a "Group") (whether or not otherwise in compliance with the provisions of this Indenture), directly or indirectly, shares ; (ii) the approval by the holders of Voting Capital Stock of the Company immediately prior to such transaction "beneficially own" (as defined below), directly of any plan or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power of all outstanding classes of Voting Stock of the surviving or transferee Person; or (3) there shall occur proposal for the liquidation or dissolution of the Company (whether or not otherwise in compliance with the provisions of this Indenture); (iii) any person or Group shall become the beneficial owner of shares representing more than 50% of the aggregate ordinary voting power represented by the Company's issued and outstanding Voting Stock; or (iv) the first day of which a majority of the members of the Company's Board of Directors are not Continuing Directors (as hereinafter defined).

Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding on or prior to November 1, 2003 there shall occur have occurred a Change in Control, Securities shall be purchased by the Company Company, at the option of the Holders thereof Holder thereof, at the purchase price specified in paragraph 6 of the Securities (the "Change in Control Purchase Price"), as of the date that is 30 35 Business Days after the occurrence of the Change in Control (the "Change in Control Purchase Date") at a purchase price equal to the principal amount of the Securities, plus accrued and unpaid interest to, but excluding, the Change in Control Purchase Date (the "Change in Control Purchase Price"), subject to satisfaction by or on behalf of any the Holder of the requirements set forth in subsection (c) of this Section 3.83.09(c). A " Change in Control" shall be deemed to have occurred if any at such time as either of the following occurs after the date hereofevents shall occur: (1i) There shall be consummated any "person" consolidation or "group" (as such terms are defined below) is merger of the Company pursuant to which the Common Stock would be converted into cash, securities or becomes other property, in each case other than a consolidation or merger of the "beneficial owner" (as defined below)Company in which the holders of the Common Stock immediately prior to the consolidation or merger have, directly or indirectly, of shares of Voting Stock of the Company representing 50% or more of the total voting power of all outstanding classes of Voting Stock of the Company or has the power, directly or indirectly, to elect a majority of the members of the Board of Directors of the Company; or (2) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the Persons that "beneficially owned" (as defined below), directly or indirectly, shares of Voting Stock of the Company immediately prior to such transaction "beneficially own" (as defined below), directly or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power in the aggregate of all outstanding classes of Voting Stock capital stock of the continuing or surviving corporation immediately after such consolidation or transferee Personmerger; or (3ii) there There is a report filed on Schedule 13D or 14D-1 (or any successor schedule, form or report) pursuant to the Exchange Act, disclosing that any person (for the purposes of this Section 3.09 only, as the term "person" is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of 50% or more of the voting power of the Common Stock then outstanding; provided, however, that a person shall occur not be deemed beneficial owner of, or to own beneficially, (A) any securities tendered pursuant to a tender or exchange offer made by or on behalf of such person or any of such person's Affiliates or Associates until such tendered securities are accepted for purchase or exchange thereunder, or (B) any securities if such beneficial ownership (1) arises solely as a result of a revocable proxy delivered in response to a proxy or consent solicitation made pursuant to the liquidation applicable rules and regulations under the Exchange Act, and (2) is not also then reportable on Schedule 13D (or dissolution any successor schedule) under the Exchange Act. Notwithstanding the foregoing provisions of this Section 3.09, a Change in Control shall not be deemed to have occurred by virtue of the Company, any Subsidiary, any employee stock ownership plan or any other employee benefit plan of the Company or any Subsidiary, or any person holding Common Stock for or pursuant to the terms of any such employee benefit plan, filing or becoming obligated to file a report under or in response to Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report) under the Exchange Act disclosing beneficial ownership by it of shares of Common Stock, whether in excess of 50% or otherwise.

Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding on or prior to August 16, 2003 there shall occur have occurred a Change in Control, all or a portion of the Securities of any Holder shall be purchased by the Company Company, at the option of such Holder, at a purchase price specified in paragraph 6 of the Holders thereof Securities (the "Change in Control Purchase Price"), as of the date that is 30 35 Business Days after the occurrence of the Change in Control (the "Change in Control Purchase Date") at a purchase price equal to the principal amount of the Securities, plus accrued and unpaid interest to, but excluding, the Change in Control Purchase Date (the "Change in Control Purchase Price"), subject to satisfaction by or on behalf of any the Holder of the requirements set forth in subsection (c) of this Section 3.83.09(c). A " Change in Control" shall be deemed to have occurred if any at such time as either of the following occurs after the date hereofevents shall occur: (1i) any "person" , including its Affiliates and associates, files a Schedule 13D or "group" TO (as or any successor schedule, form or report under the Exchange Act) disclosing that such terms are defined below) is or becomes person has become the "beneficial owner" (as defined below), directly or indirectly, owner of shares of Voting Stock of the Company representing 50% or more of the total voting power in the aggregate of all outstanding classes of Voting Capital Stock of the Company then outstanding normally entitled to vote in elections of directors; or (ii) there shall be consummated any consolidation or has merger of the powerCompany pursuant to which the Class A Common Stock would be converted into cash, securities or other property, in each case other than a consolidation or merger of the Company in which (1) the holders of all classes of Common Stock immediately prior to the consolidation or merger have, directly or indirectly, to elect a majority of the members of the Board of Directors of the Company; or (2) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the Persons that "beneficially owned" (as defined below), directly or indirectly, shares of Voting Stock of the Company immediately prior to such transaction "beneficially own" (as defined below), directly or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power in the aggregate of all outstanding classes of Voting Capital Stock of the continuing or surviving corporation normally entitled to vote in elections of directors immediately after the consolidation or transferee Person; merger and (2) the shares of Class A Common Stock shall be converted into common stock which is (or (3, upon consummation of or immediately following such consolidation or merger, will be) there listed on a United States national securities exchange or approved for quotation on the Nasdaq National Market or any similar United States system for automated dissemination of quotations of securities prices. Notwithstanding the foregoing provisions of this Section 3.09, a Change in Control shall occur the liquidation or dissolution not be deemed to have occurred by virtue of the Company, any Subsidiary, any employee stock ownership plan or any other employee benefit plan of the Company or any Subsidiary, or any person holding Common Stock for or pursuant to the terms of any such employee benefit plan, filing or becoming obligated to file a report under or in response to Schedule 13D or Schedule TO (or any successor schedule, form or report) under the Exchange Act disclosing beneficial ownership by it of shares of Common Stock, whether in excess of 50% or otherwise.

Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding there shall occur a Change in Control, Securities shall be purchased by the Company at the option of the Holders thereof as of the date that is 30 Business Days after the occurrence of the Change in Control (the "Change in Control Purchase DateCHANGE IN CONTROL PURCHASE DATE") at a purchase price equal to the principal amount of the Securities, plus accrued and unpaid interest to, but excluding, the Change in Control Purchase Date (the "Change in Control Purchase PriceCHANGE IN CONTROL PURCHASE PRICE"), subject to satisfaction by or on behalf of any Holder of the requirements set forth in subsection (c) of this Section 3.8. A " Change in Control" shall be deemed to have occurred if any of the following occurs after the date hereof: (1) any "person" or "group" (as such terms are defined below) is or becomes the "beneficial owner" (as defined below), directly or indirectly, of shares of Voting Stock of the Company representing 50% or more of the total voting power of all outstanding classes of Voting Stock of the Company or such person or group has the power, directly or indirectly, to elect a majority of the members of the Board of Directors of the Company; or (2) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the Persons that "beneficially owned" (as defined below), directly or indirectly, shares of Voting Stock of the Company immediately prior to such transaction "beneficially own" (as defined below), directly or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power of all outstanding classes of Voting Stock of the surviving or transferee Person; or (3) there shall occur the liquidation or dissolution of the Company.

Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding on or prior to maturity, there shall occur have occurred a Change in ControlControl (as defined herein), the Securities shall be purchased purchased, at the option of the holder thereof, by the Company at the option of purchase price specified in the Holders thereof as of Securities (the "Change in Control Purchase Price"), on the date that is 30 35 Business Days after the occurrence of the Change in Control (the "Change in Control Purchase Date") at a purchase price equal to the principal amount of the Securities, plus accrued and unpaid interest to, but excluding, the Change in Control Purchase Date (the "Change in Control Purchase Price"), subject to Article Fourteen and satisfaction by or on behalf of any Holder the holder of the requirements set forth in subsection (c) of this Section 3.812.6(c). A " Change in Control" shall be deemed to have occurred if at such time as any of the following occurs after the date hereofevents shall occur: (1i) any Any person (for purposes of paragraph (i) of this Section 12.6 only, the term "person" shall mean a "person" as defined in or for purposes of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act of 1934 (as defined herein), or any successor provision to either of the foregoing, including any "group" acting for the purpose of acquiring, holding or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act of 1934), together with its Affiliates and Associates (as defined herein), shall file a report under or in response to Schedule 13D or 14D-1 (or any successor schedule, form or report) pursuant to the Exchange Act of 1934 disclosing that such terms are defined below) is or becomes person has become the beneficial owner (as the term "beneficial owner" is defined in Rule 13(d)(3) under the Exchange Act of 1934, or any successor provision) of either (as defined below), directly or indirectly, of shares of Voting Stock of the Company representing A) 50% or more of the total shares of Common Stock then outstanding or (B) 50% or more of the voting power of all outstanding classes of the Voting Stock (as defined herein) of the Company or has then outstanding; provided, however, that for purposes of paragraph (i) of this Section 12.6, a person shall not be deemed the power, directly or indirectly, to elect a majority of the members of the Board of Directors of the Company; or (2) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the Persons that "beneficially owned" (as defined below), directly or indirectly, shares of Voting Stock of the Company immediately prior to such transaction "beneficially own" (as defined below), directly or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power of all outstanding classes of Voting Stock of the surviving or transferee Person; or (3) there shall occur the liquidation or dissolution of the Company.beneficial owner of

Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding on or prior to February 9, 2003 there shall occur have occurred a Change in Control, Securities shall be purchased purchased, at the option of the Holder thereof, by the Company at the option purchase price specified in paragraph 6 of the Holders thereof as of Securities (the "CHANGE IN CONTROL PURCHASE PRICE"), on the date that is 30 35 Business Days after the occurrence of the Change in of Control (the "Change in Control Purchase Date") at a purchase price equal to the principal amount of the Securities, plus accrued and unpaid interest to, but excluding, the Change in Control Purchase Date (the "Change in Control Purchase PriceCHANGE IN CONTROL PURCHASE DATE"), subject to satisfaction by or on behalf of any the Holder of the requirements set forth in subsection (c) of this Section 3.8. 3.09(c). A " Change in Control"CHANGE IN CONTROL" shall be deemed to have occurred if any at such time after the original issuance of the Securities as either of the following occurs after the date hereofevents shall occur: (1i) There shall be consummated any "person" consolidation or "group" (as such terms are defined below) merger of the Company in which the Company is not the continuing or becomes surviving corporation or pursuant to which the "beneficial owner" (as defined below)Common Stock would be converted into cash, securities or other property, other than a consolidation or merger of the Company in which the holders of Common Stock immediately prior to the consolidation or merger have, directly or indirectly, at least a majority of shares of Voting the Common Stock of the continuing or surviving corporation immediately after such consolidation or merger; or (ii) There is a report filed by any person, including its Affiliates and Associates, other than Xxxx/Chilmark, the Company, any Subsidiary of the Company, or any employee benefit plan of either the Company representing or any Subsidiary of the Company, on Schedule 13D or 14D-1 (or any successor schedule, form or report) pursuant to the Exchange Act, disclosing that such person (for the purposes of this Section 3.09 only, the term "person" shall include a "person" within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision to either of the foregoing) has become the beneficial owner (as the term "BENEFICIAL OWNER" is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of 50% or more of the total voting power of all outstanding classes the Company's Common Stock then outstanding; PROVIDED, HOWEVER, that a person shall not be deemed beneficial owner of, or to own beneficially, (A) any securities tendered pursuant to a tender or exchange offer made by or on behalf of Voting Stock such person or any of such person's Affiliates or Associates until such tendered securities are accepted for purchase or exchange thereunder, or (B) any securities if such beneficial ownership (1) arises solely as a result of a revocable proxy delivered in response to a proxy or consent solicitation made pursuant to, and in accordance with, the applicable rules and regulations under the Exchange Act, and (2) is not also then reportable on Schedule 13D (or any successor schedule, form or report) under the Exchange Act. Notwithstanding the foregoing provisions of this Section 3.09, a Change in Control shall not be deemed to have occurred if at any time the Company, any Subsidiary, any employee stock ownership plan or any other employee benefit plan of the Company or has the power, directly or indirectly, to elect a majority of the members of the Board of Directors of the Company; or (2) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Companyany Subsidiary, or any Person consolidates with, person holding Common Stock for or merges with or into, pursuant to the Company, in terms of any such event other than pursuant employee benefit plan files or becomes obligated to file a transaction report under or in which response to Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report) under the Persons that "beneficially owned" (as defined below), directly or indirectly, Exchange Act disclosing beneficial ownership by it of shares of Voting Stock Common Stock, whether in excess of the Company immediately prior to such transaction "beneficially own" (as defined below), directly 50% or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power of all outstanding classes of Voting Stock of the surviving or transferee Person; or (3) there shall occur the liquidation or dissolution of the Companyotherwise.