Common use of Purchase Price Adjustments Clause in Contracts

Purchase Price Adjustments. (a) If and whenever after the date hereof the Company shall issue or sell any shares of its capital stock (except as set forth below in subparagraph 5.2(b)), for a consideration per share less than the Purchase Price in effect immediately prior to the time of such issue or sale, the Purchase Price shall be reduced to the price (calculated to the nearest $0.01) obtained by dividing (i) an amount equal to the sum of (A) the number of shares of capital stock outstanding, or deemed to be outstanding, immediately prior to such issue or sale multiplied by the Purchase Price prevailing immediately prior to such issue or sale plus (B) the consideration, if any, received by the Company upon such issue or sale, by (ii) the total number of shares of capital stock outstanding, or deemed to be outstanding, immediately after such issue or sale. Notwithstanding the foregoing, no adjustment of the Purchase Price shall be made in an amount less than $0.01 per share, but any such lesser adjustment shall be carried forward and shall be made at the time of and together with the next subsequent adjustment which together with any adjustments so carried forward shall amount to $0.01 per share or more. (b) The following issuance of the Company's securities shall not result in an adjustment in the Purchase Price: (i) stock issued pursuant to a bona fide, public offering of shares of Common Stock, registered under the Securities Act, pursuant to a registration statement; (ii) stock issued pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof; (iii) stock issued pursuant to or in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise; (iv) stock issued upon the exercise of any warrants issued as of the date hereof (which do not have as their purpose an equity financing element) approved by the Board; (v) stock issued upon the exercise of one or more of the Warrants; or (vi) stock issued pursuant to options, warrants, rights or similar commitments obligating the Company to issue shares of its capital stock which are in existence as of the date hereof.

Purchase Price Adjustments. If on any day: (a) If the Outstanding Balance of a Receivable is: (i) reduced as a result of any defective or rejected goods or services, any discount or any adjustment or otherwise by Originator (other than cash Collections on account of the Receivables), (ii) reduced or canceled as a result of a setoff in respect of any claim by any Person (whether such claim arises out of the same or a related transaction or an unrelated transaction), or (b) any of the representations and whenever after the date hereof the Company shall issue or sell any shares of its capital stock (except as warranties set forth below in subparagraph 5.2(b)Article II are no longer true with respect to any Receivable, then, in such event, (i) in the case of clause (a), for Buyer shall be entitled to a consideration per share less than credit against the Purchase Price otherwise payable hereunder in effect immediately prior to the time of such issue or sale, the Purchase Price shall be reduced to the price (calculated to the nearest $0.01) obtained by dividing (i) an amount equal to the sum amount of such reduction or cancellation, and (Aii) in the number case of shares of capital stock outstandingclause (b), or deemed Buyer shall be entitled to be outstanding, immediately prior to such issue or sale multiplied by a credit against the Purchase Price prevailing immediately prior to such issue or sale plus (B) the consideration, if any, received by the Company upon such issue or sale, by (ii) the total number of shares of capital stock outstanding, or deemed to be outstanding, immediately after such issue or sale. Notwithstanding the foregoing, no adjustment of the Purchase Price shall be made otherwise payable hereunder in an amount less than $0.01 per shareequal to the full amount of the Outstanding Balance of such Receivable and, but on the following Settlement Date after application of any such lesser adjustment shall be carried forward and shall payment required to be made at by the time of and together with the next subsequent adjustment which together with any adjustments so carried forward shall amount to $0.01 per share or more. (b) The following issuance of the Company's securities shall not result in an adjustment in the Purchase Price: (i) stock issued pursuant to a bona fide, public offering of shares of Common Stock, registered under the Securities Act, pursuant to a registration statement; (ii) stock issued Originator on such Settlement Date pursuant to the conversion or exercise next sentence, such Receivable, its Related Security, and any future Collections, any Records, Contracts and other rights and documents relating thereto (the “Reconveyed Assets”), shall hereby be conveyed by Buyer to Originator, free and clear of convertible or exercisable securities outstanding as any Adverse Claim on the part of the date hereof; (iii) stock issued pursuant to Buyer or in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise; (iv) stock issued upon the exercise of any warrants issued as assignee of the Buyer. If the aggregate amount of all Purchase Price Credits during any Calculation Period shall exceed the aggregate amount of Purchase Price payable in respect of Receivables coming into existence during such Calculation Period, the Originator shall pay an amount in cash equal to such excess to Buyer on the Settlement Date following the end of such Calculation Period or on such earlier date hereof (as the Agent may direct. Buyer hereby grants to Originator a power of attorney, coupled with an interest, to act as its attorney for the purpose of doing anything which Buyer may lawfully do not have as their by attorney solely for the purpose an equity financing element) approved by the Board; (v) stock issued upon the exercise of one or more effecting any reconveyance of the Warrants; or (vi) stock issued pursuant Reconveyed Assets to options, warrants, rights or similar commitments obligating the Company to issue shares of its capital stock which are be effected in existence as of the date hereofaccordance with this Section 1.3.

Purchase Price Adjustments. (a) If The Parties agree that, so long as any distributions made are reflected in Closing Working Capital and whenever after the date hereof the Company shall issue or sell in any shares of its capital stock (except as set forth below in subparagraph 5.2(b)), for a consideration per share less than adjustments to the Purchase Price in effect immediately under Section 1.4(c), the Seller shall have the right, at or prior to the time of such issue or saleClosing, to cause the Purchase Price shall be reduced Company to distribute cash to the price (calculated to the nearest $0.01) obtained by dividing (i) an amount equal to the sum of (A) the number of shares of capital stock outstanding, Seller or deemed to be outstanding, immediately prior to such issue or sale multiplied by the Purchase Price prevailing immediately prior to such issue or sale plus (B) the consideration, if any, received by the Company upon such issue or saleits Affiliates, by (ii) the total number of shares of capital stock outstanding, one or deemed to be outstanding, immediately after such issue or sale. Notwithstanding the foregoing, no adjustment of the Purchase Price shall be made in an amount less than $0.01 per share, but any such lesser adjustment shall be carried forward and shall be made at the time of and together with the next subsequent adjustment which together with any adjustments so carried forward shall amount to $0.01 per share or moremore dividends and/or other distributions. (b) The Within 90 calendar days following issuance of the Company's securities Closing, the Buyer shall not result prepare, or cause to be prepared, and deliver to the Seller a statement (the “Closing Statement”), in an adjustment in accordance with the Purchase Price: Accounting Principles, which shall include (i) stock issued pursuant a balance sheet of the Company as of the Closing Date, (ii) a calculation of the total Working Capital of the Company as of the Closing Date (the “Closing Working Capital”), (iii) a calculation of the Working Capital Deficit or the Working Capital Excess, as the case may be (which, for the avoidance of doubt, shall include the Buyer’s calculation of the Target Working Capital), (iv) a calculation of Closing Cash, (v) a calculation of Closing Indebtedness, (vi) a calculation of Transaction Expenses and (vii) the Buyer’s determination of the final Purchase Price (the “Final Purchase Price”) resulting therefrom. For purposes of the Buyer’s preparation of the Closing Statement, the Seller shall make available or provide reasonable access to the Buyer and its Representatives, upon advance notice and during normal business hours, all information, books, records, data and working papers created or used in connection with the preparation of the Estimated Working Capital Certificate, to the extent not in the possession of the Company or the Buyer. The Seller shall have a bona fideperiod of 30 calendar days after delivery of the Closing Statement to review (and cause the Seller’s auditors to review) such documents and make any objections it may have in writing to the Buyer. For purposes of the Seller’s evaluation of the Closing Statement, public offering the Buyer shall, and shall cause the Company to, make available or provide reasonable access to the Seller and its Representatives, upon advance notice and during normal business hours, all information, books, records, data and working papers created or used in connection with the preparation of shares the Closing Statement; and shall permit reasonable access, upon advance notice and during normal business hours, to the facilities and personnel of Common Stockthe Company as may be reasonably requested by the Seller and its Representatives to analyze the Closing Statement. If the Seller delivers written objections to the Buyer within such 30-day period, registered under then the Securities ActBuyer and the Seller shall attempt to resolve the matter or matters in dispute. If no written objections are made by the Seller within such 30-day period, then the Closing Statement shall be final and binding on the Parties. If disputes with respect to the Closing Statement cannot be resolved by the Buyer and the Seller within 30 calendar days after timely delivery of any objections thereto, then, at the request of the Buyer or the Seller, the specific matters in dispute (but no others) shall be submitted to such independent accounting firm as may be approved by the Seller and the Buyer (the “Auditors”), which firm shall render its opinion as to such specific matters. If no such referral is made within 45 calendar days after the delivery of the objections, then the Closing Statement shall be final and binding on the Parties. If all objections are so resolved between the Parties prior to such time, the Closing Statement with such changes as have been agreed in writing by the Buyer and the Seller shall be final and binding on the Parties. The matters to be resolved by the Auditors shall be limited to the remaining unresolved disputes between the Buyer and the Seller. The Parties shall cooperate with the Auditors during its engagement, and the Auditors shall have access to the books and records of the Company and the Buyer, the personnel of, and work papers prepared by, the Parties’ accountants to the extent that they relate to the unresolved disputes as it may reasonably request for the purpose of reviewing such unresolved disputes, provided, that such access shall be in a manner that does not interfere with the normal business operations of the Buyer, the Company or the Seller. The Auditors shall promptly deliver to the Buyer and the Seller a written report setting forth their resolution of the disputes along with their determination of the Final Purchase Price, which determination shall be made in accordance with the definitions and principles set forth in this Agreement and shall be final and binding on the Parties. As to each disputed item, the Auditors shall be limited to awarding only one or the other of the Buyer’s proposal, on the one hand, or the Seller’s proposal, on the other hand, and shall have no authority to select or propose to the Parties any resolution other than as set forth in one of such two proposals originally submitted to the Auditors. Judgment may be entered upon the determination of the Auditors in any court having jurisdiction over the Party against which such determination is to be enforced. The fees and expenses of the Auditors shall be borne by the Parties as designated by the Auditors, which designation shall be based upon the inverse proportion of the amount of disputed items resolved in favor of such Party (i.e., so that the prevailing Party bears a lesser amount of such fees and expenses). If the Parties refer a dispute to the Auditors and if the Adjustment Escrow Funds exceed the amount by which the Estimated Purchase Price is greater than the Final Purchase Price (as claimed by the Buyer), then the Buyer and the Seller shall, pursuant to a registration statement; the terms of the Escrow Agreement, promptly instruct the Escrow Agent to pay the Seller the amount of such excess out of the Adjustment Escrow Funds, and the remaining balance of the Adjustment Escrow Funds shall be paid out pursuant to Section 1.4(c) after the final determination of the Final Purchase Price pursuant to this Section 1.4. (iic) stock issued If the Estimated Purchase Price is greater than the Final Purchase Price, then within two business days following the final determination thereof, the Buyer and the Seller shall, pursuant to the conversion or exercise of convertible or exercisable securities outstanding as terms of the date hereof; Escrow Agreement, instruct the Escrow Agent to pay the Buyer the amount of such excess out of the Adjustment Escrow Funds (iii) stock issued and if the balance of the Adjustment Escrow Funds is less than the amount due to the Buyer pursuant to this Section 1.4, then at the Buyer’s option the Buyer may recover the remaining amount from the Indemnity Escrow Funds or require the Seller to pay such amount to the Buyer by wire transfer in connection with a bona fide business acquisition of immediately available funds to the account or accounts designated by the CompanyBuyer). If the Final Purchase Price is greater than the Estimated Purchase Price, whether then within two business days following the final determination thereof, the Buyer will pay to the Seller by mergerwire transfer in immediately available funds to the account or accounts designated by the Seller the amount of such excess and the Buyer and the Seller shall, consolidation, sale of assets, sale or exchange of stock or otherwise; (iv) stock issued upon pursuant to the exercise of any warrants issued as terms of the date hereof (which do not have Escrow Agreement, instruct the Escrow Agent to pay the Seller the entire balance of the Adjustment Escrow Funds. Any payments pursuant to this Section 1.4(c) shall be treated as their purpose an equity financing element) approved adjustment to the Purchase Price by the Board; (v) stock issued upon the exercise of one or more of the Warrants; or (vi) stock issued pursuant to optionsparties for Tax purposes, warrants, rights or similar commitments obligating the Company to issue shares of its capital stock which are in existence as of the date hereofunless otherwise required by Law.

Purchase Price Adjustments. (a) If and whenever after the date hereof the Company shall issue or sell any shares of its capital stock (except as set forth below in subparagraph 5.2(b)), for a consideration per share less than the Purchase Price in effect immediately prior to the time of such issue or sale, the The Purchase Price shall be reduced increased by an amount equal to the price aggregate of the following: (calculated a) 100% of the face amount of all Accounts Receivable which, as of the Closing Date, are outstanding for a period of not more than 30 days after their respective invoice dates and (b) 85% of the face amount of all Accounts Receivable which, as of the Closing Date, are outstanding for a period of more than 30 days but not more than 60 days after their respective invoice dates; and (ii) to the nearest $0.01extent not included in the prorations to the Purchase Price as set forth in Section 3.2, the dollar amount of all advance payments to, or deposits with, third parties relating to the Business which, as of the Closing Date, are for the account of Seller or are security for Seller's performance of its obligations under any agreement relating to the Business or any Assets, including, but not limited to, deposits made with lessors and deposits for utilities. (b) obtained The Purchase Price shall be decreased by dividing (i) an amount equal to the sum of (Ai) the number dollar amount of shares the remaining balance, as of capital stock outstandingthe Closing Date, of all advance payments to, or deemed monies of third parties on deposit with, Seller relating to be outstandingthe Business, immediately prior to such issue or sale multiplied including advance payments and deposits by customers served by the Purchase Price prevailing immediately prior to such issue or sale plus (B) the considerationBusiness for converters, if anyencoders, received by the Company upon such issue or saledecoders, by cable service and related sales, (ii) the total dollar amount of accrued vacation pay of employees of Employer identified on Schedule 5.13(d) who are employed by Buyer as of the Closing and (iii) if the average of the aggregate number of shares Equivalent Basic Subscribers served by the System (excluding the Units) as of capital stock outstandingthe Closing Date and as of the first day of the month for the eleven months prior to the month during which the Closing occurs (the "Subscriber Average") is less than 27,582, or deemed an amount equal to be outstanding(x) the difference between 27,582 and the Subscriber Average times (y) $1,507. (i) If as of the Closing Date Seller has obtained the Sea Colony Consent, immediately after such issue or sale. Notwithstanding the foregoing, then no adjustment shall be made to the Purchase Price other than as provided for in Sections 3.2 and 3.3(a) and (b); provided, however, that if the weighted average rate charged under such agreement for the provision of Basic Services (the "Closing Rate") is less than $13.09 per unit of Sea Colony per month, the Purchase Price shall be made in decreased by an amount less than equal to (x) $0.01 per share1,534,126 (the "Sea Colony Adjustment") minus (y) the Units calculated using the Closing Rate times $1,507. (ii) If as of the Closing Date, but (x) Seller has not obtained the Sea Colony Consent and (y) Seller has received written notice from Xxxx X. Xxxxxxx Associates, Inc. (or any such lesser adjustment successor thereto) that Buyer will not be permitted to provide Basic Services to the Units after the Closing Date (a "Sea Colony Notice"), then the Purchase Price shall be carried forward decreased by an amount equal to the Sea Colony Adjustment. (iii) If as of the Closing Date Seller (x) has not obtained the Sea Colony Consent, (y) has not received a Sea Colony Notice and (z) is not providing Basic Services to the Units, then the Purchase Price shall be made decreased by an amount equal to the Sea Colony Adjustment and at Closing Buyer shall place into escrow an amount equal to the time Sea Colony Adjustment. (iv) If as of the Closing Date Seller (x) has not obtained the Sea Colony Consent, (y) has not received a Sea Colony Notice and together with (z) is providing Basic Services to the next subsequent adjustment which Units, then at Closing Seller shall place into escrow a portion of the Purchase Price equal in amount to the Sea Colony Adjustment. (v) Any funds placed into escrow pursuant to paragraph (iii) or (iv) of this Section 3.3(c) shall be released (together with any adjustments so carried forward shall amount to $0.01 per share or more. (binterest earned thereon) The following issuance of the Company's securities shall not result in an adjustment in the Purchase Price: (i) stock issued pursuant to a bona fide, public offering of shares of Common Stock, registered under the Securities Act, pursuant to a registration statement; (ii) stock issued pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof; (iii) stock issued pursuant to or in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise; (iv) stock issued upon the exercise of any warrants issued as of the date hereof (which do not have as their purpose an equity financing element) approved by the Board; (v) stock issued upon the exercise of one or more of the Warrants; or (vi) stock issued pursuant to options, warrants, rights or similar commitments obligating the Company to issue shares of its capital stock which are in existence as of the date hereof.follows:

Purchase Price Adjustments. The amount of the Purchase Price payable pursuant to this Agreement shall be adjusted as follows: (a1) If and whenever after Consistent with its obligation to maintain its business in the date hereof Ordinary Course of Business, Seller shall maintain the Company shall issue or sell any shares level of its capital Inventory at the Supermarkets (determined on a stock (except ledger basis consistent with past practice as set forth below in subparagraph 5.2(bon Worksheet 2 (“Inventory by Borrower”) of the Seller’s “Form of Borrowing Base Certificate” under the caption “stock ledger inventory” an example of which is attached hereto as Exhibit 5.1(h)(1))), for and any decrease in the value of such Inventory as of the Closing Date, below $38,000,000 shall result in a consideration per share less than dollar-for-dollar reduction of the Purchase Price Price, and any increase in effect immediately the value of such Inventory, above $40,000,000 shall result in a dollar-for-dollar increase in the Purchase Price. (2) If prior to Closing the time Acquired Assets become subject to damage or other casualty, whether or not covered by insurance, in an amount in excess of $1,000,000, the excess of the aggregate amount of such issue damage or saleother casualty over $1,000,000 shall result in a dollar-for-dollar reduction of the Purchase Price. (3) In the event the Bankruptcy Sale Order does not contain the provision required under Section 3.2(b)(xv) hereof, and a lessor in respect of any Acquired Contract does not (i) consent to Buyer’s re-branding and identification of the respective Supermarkets, including the installation and construction of signage or other alterations to the premises as required by Buyer, and (ii) waive any restrictions or events of default that may arise under the terms of any of the real estate leases which arise by reason of Buyer conducting store closing sales and closing the respective Supermarket for the purposes of selling, remodeling, altering or renovating the subject premises, Buyer may designate such lease as an Excluded Asset and the Purchase Price shall be reduced to the price (calculated to the nearest $0.01) obtained by dividing (i) an amount equal to the sum of (A) the number of shares of capital stock outstanding, or deemed to be outstanding, immediately prior to such issue or sale multiplied by the Purchase Price prevailing immediately prior to such issue or sale plus (B) the consideration, if any, received by the Company upon such issue or sale, by (ii) the total number of shares of capital stock outstanding, or deemed to be outstanding, immediately after such issue or sale. Notwithstanding the foregoing, no adjustment of the Purchase Price shall be made in an amount less than $0.01 per share, but any such lesser adjustment shall be carried forward and shall be made at the time of and together with the next subsequent adjustment which together with any adjustments so carried forward shall amount agreed to $0.01 per share or more. (b) The following issuance of the Company's securities shall not result in an adjustment in the Purchase Price: (i) stock issued pursuant to a bona fide, public offering of shares of Common Stock, registered under the Securities Act, pursuant to a registration statement; (ii) stock issued pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof; (iii) stock issued pursuant to or in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise; (iv) stock issued upon the exercise of any warrants issued as of the date hereof (which do not have as their purpose an equity financing element) approved by the Board; (v) stock issued upon the exercise of one or more of the Warrants; or (vi) stock issued pursuant to options, warrants, rights or similar commitments obligating the Company to issue shares of its capital stock which are in existence as of the date hereofparties.

Purchase Price Adjustments. (a) If and whenever after the date hereof the Company shall issue or sell any shares of its capital stock Common Stock (except as set forth below (i) upon exercise of one or more of the Warrants or (ii) shares of Common Stock issued to employees, officers, directors of the Company upon the exercise of options granted under the Company's Employee Stock Option/Purchase Plans (hereinafter defined) not to exceed in subparagraph 5.2(b)), the aggregate 1,200,000 shares of Common Stock) for a consideration per share less than the Purchase Price in effect immediately prior to the time of such issue or sale, or shall be deemed under the provisions of this Section 5 to have effected any such issuance or sale, then, forthwith upon such issue or sale, the Purchase Price shall be reduced to the price (calculated to the nearest $0.010.0001) obtained by dividing (i) an amount equal multiplying the Purchase Price in effect immediately prior to the time of such issue or sale by a fraction, the numerator of which shall be the sum of (Ai) the number of shares of capital stock outstanding, or deemed to be outstanding, Common Stock outstanding immediately prior to such issue or sale multiplied by the Purchase Price prevailing immediately prior to such issue or sale plus (Bii) the consideration, if any, consideration received by the Company upon such issue or sale, by and the denominator of which shall be the product of (iiiii) the total number of shares of capital stock outstanding, or deemed to be outstanding, Common Stock outstanding immediately after such issue or sale, multiplied by (iv) the Purchase Price immediately prior to such issue or sale. As used herein, "Employee Stock Option/Purchase Plans" consist of the Company's 1997 Equity Incentive Plan, 1995 Stock Option Plan, Employee Stock Purchase Plan, Employee Bonus Award Plan, and non qualified options granted to certain Directors of the Company. Notwithstanding the foregoing, no adjustment of the Purchase Price shall be made in an amount less than $0.01 0.0001 per share, but any such lesser adjustment shall be carried forward and shall be made at the time of and together with the next subsequent adjustment which together with any adjustments so carried forward shall amount to $0.01 0.0001 per share or more. (b) The following issuance of the Company's securities shall not result in an adjustment in the Purchase Price: (i) stock issued pursuant to a bona fide, public offering of shares of Common Stock, registered under the Securities Act, pursuant to a registration statement; (ii) stock issued pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof; (iii) stock issued pursuant to or in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise; (iv) stock issued upon the exercise of any warrants issued as of the date hereof (which do not have as their purpose an equity financing element) approved by the Board; (v) stock issued upon the exercise of one or more of the Warrants; or (vi) stock issued pursuant to options, warrants, rights or similar commitments obligating the Company to issue shares of its capital stock which are in existence as of the date hereof.

Purchase Price Adjustments. (a) If and whenever after the date hereof the Company shall issue or sell any shares of its capital stock (except as set forth below in subparagraph 5.2(b)), Common Stock for a consideration per share less than the Purchase Price in effect immediately prior to the time of such issue or sale, and/or the Company shall issue or sell any shares of its Common Stock for a consideration per share less than the Conversion Price in effect on the date of such issue or sale, or shall be deemed under the provisions of this Section 5 to have effected any such issuance or sale, except in any instance for (i) issuances upon the exercise of options to purchase Common Stock pursuant to plans adopted or approved by the Board of Directors of the Company, including a majority of the directors designated solely by the holders of the Series A Preferred Stock, the Series B Preferred Stock and the Series C Preferred Stock, to directors, officers, employees or consultants of the Company in connection with their service as directors of the Company, their employment by the Company or their retention as consultants by the Company, (ii) issuances upon the conversion of the Series A Preferred Stock, the Series B Preferred Stock, the Series C Preferred Stock or the Series D Preferred Stock, (iii) stock issued for the acquisition, in effect, (whether by merger, stock purchase, asset purchase or otherwise) of the assets or business of other persons or entities by the Company or any of its subsidiaries which acquisition is approved by the Board of Directors of the Company, including a majority of the directors designated solely by the holders of the Series A Preferred Stock, the Series B Preferred Stock and the Series C Preferred Stock and (iv) issuances upon the exercise of one or more of the Warrants, then, forthwith upon such issue or sale, the Purchase Price shall be reduced to the price (calculated to the nearest $0.010.0001) obtained by dividing multiplying the Purchase Price in effect immediately prior to the time of such issue or sale by a fraction, (ia) an amount equal to the numerator of which shall be the sum of (Ai) the number of shares of capital stock outstanding, or deemed to be outstanding, Common Stock outstanding immediately prior to such issue or sale multiplied by the Purchase Conversion Price prevailing immediately prior to such issue or sale plus (Bii) the consideration, if any, consideration received by the Company upon such issue or sale, by and (iib) the denominator of which shall be the product of (x) the total number of shares of capital stock outstanding, or deemed to be outstanding, Common Stock outstanding immediately after such issue or sale, multiplied by (y) the Conversion Price immediately prior to such issue or sale. Notwithstanding the foregoing, no adjustment of the Purchase Price shall be made in an amount less than $0.01 0.0001 per share, but any such lesser adjustment shall be carried forward and shall be made at the time of and together with the next subsequent adjustment which together with any adjustments so carried forward shall amount to $0.01 0.0001 per share or more. (b) The following issuance of the Company's securities shall not result in an adjustment in the Purchase Price: (i) stock issued pursuant to a bona fide, public offering of shares of Common Stock, registered under the Securities Act, pursuant to a registration statement; (ii) stock issued pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof; (iii) stock issued pursuant to or in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise; (iv) stock issued upon the exercise of any warrants issued as of the date hereof (which do not have as their purpose an equity financing element) approved by the Board; (v) stock issued upon the exercise of one or more of the Warrants; or (vi) stock issued pursuant to options, warrants, rights or similar commitments obligating the Company to issue shares of its capital stock which are in existence as of the date hereof.

Purchase Price Adjustments. The provisions of this Warrant are subject to adjustment as provided in this Section 5. (a) If and whenever after the date hereof In case the Company shall issue hereafter: (i) pay any dividends on any class of stock of the Company payable in common stock or sell any Convertible Securities; (ii) subdivide its then-outstanding shares of its capital common stock into a greater number of shares; or (except as set forth below iii) combine outstanding shares of common stock, by reclassification or otherwise; then, in subparagraph 5.2(b))any such event, for a consideration per share less than the Purchase Price in effect immediately prior to the time of such issue or sale, the Purchase Price event shall (until adjusted again pursuant hereto) be reduced adjusted immediately after such event to the a price (calculated to the nearest $0.01full cent) obtained determined by dividing (i) an amount equal to the sum of (A) the number of shares of capital common stock outstanding, or deemed to be outstanding, outstanding immediately prior to such issue or sale event, multiplied by the then-existing Purchase Price prevailing immediately prior to such issue or sale plus (B) the consideration, if any, received by the Company upon such issue or salePrice, by (iiB) the total number of shares of capital common stock outstanding, or deemed to be outstanding, outstanding immediately after such issue event (including in each case the maximum number of shares of common stock issuable in respect of any Convertible Securities), and the resulting quotient shall be the adjusted Purchase Price. An adjustment made pursuant to this paragraph shall become effective immediately after the record date in the case of a dividend or saledistribution and shall become effective immediately after the effective date in the case of a subdivision, combination or reclassification. Notwithstanding If, as a result of an adjustment made pursuant to this paragraph, the foregoingHolder of any Warrant thereafter surrendered for exercise shall become entitled to receive shares of two or more classes of capital stock or share of common stock and other capital stock of the Company, no the Company’s board of directors (whose determination shall be conclusive) shall determine the allocation of the adjusted Purchase Price between or among shares of such classes of capital stock or shares of common stock and other-capital stock. All calculations under this paragraph shall be made to the nearest cent or to the nearest 1/100 of a share, as the case may be. In the event that at any time as a result of an adjustment made pursuant to this paragraph, the holder of any Warrant thereafter surrendered for exercise shall become entitled to receive any shares of the Company other than shares of common stock, thereafter the Purchase Price of such other shares so receivable upon exercise of any Warrant shall be made subject to adjustment from time to time in an amount less than $0.01 per share, but any such lesser adjustment shall be carried forward a manner and shall be made at on terms as nearly equivalent as practicable to the time of and together provisions with the next subsequent adjustment which together with any adjustments so carried forward shall amount respect to $0.01 per share or morecommon stock contained in this Section. (b) The following issuance In case of any consolidation or merger to which the Company is a party other than a merger or consolidation in which the Company is the surviving corporation, or in case of any sale or conveyance to another corporation of the Company's securities shall not result in property of the Company as an adjustment entirety or substantially as an entirety, or in the Purchase Price: case of any statutory exchange of securities with another corporation (i) stock issued pursuant to a bona fide, public offering of shares of Common Stock, registered under the Securities Act, pursuant to a registration statement; (ii) stock issued pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof; (iii) stock issued pursuant to or including any exchange effected in connection with a bona fide business acquisition merger of or by a third corporation into the Company), whether by there shall be no adjustment under paragraph (a) above but the Holder of this Warrant then outstanding shall have the right thereafter to convert this Warrant into the kind and amount of shares of stock and other securities, and any other property, which he, she or it would have owned or have been entitled to receive immediately after such consolidation, merger, statutory exchange sale or conveyance had such Warrant been converted immediately prior to the effective date of such consolidation, sale of assetsmerger, statutory exchange, sale or exchange conveyance. The provisions of stock this paragraph shall similarly apply to successive consolidations, mergers, statutory exchanges, sales or otherwise; (iv) stock issued upon the exercise of any warrants issued as of the date hereof (which do not have as their purpose an equity financing element) approved by the Board; (v) stock issued upon the exercise of one or more of the Warrants; or (vi) stock issued pursuant to options, warrants, rights or similar commitments obligating the Company to issue shares of its capital stock which are in existence as of the date hereofconveyances.

Purchase Price Adjustments. (a) If and whenever after the date hereof the Company The Purchase Price shall issue or sell any shares of its capital stock be decreased, on a dollar for dollar basis (except as set forth below in subparagraph 5.2(b)but without duplication), to the extent that Seller is deemed to have received any Cash Distribution on or after January 1, 2003 through and including the Closing Date in respect of or as a result of (i) the operations of any Asset or (ii) any refinancing or sale or other disposition of any Asset (including, without limitation, but without duplication, any and all Cash Distributions deemed received by Seller from Insignia Opportunity Trust, Insignia Opportunity Partners, Insignia Opportunity Directives, LLC, Insignia Opportunity Partners II, L.P. and Insignia Opportunity Directives II, LLC); provided, however, that the deemed receipt by Seller of any Restricted Cash distributed on or after January 1, 2003 through and including the Closing Date shall not result in any adjustment to the Purchase Price pursuant to this Section 1.6(a), and the Parties acknowledge and agree that Seller shall be entitled to retain such Restricted Cash for its own account. For purposes of this Section 1.6(a), Seller shall be deemed to have received a consideration per share less Cash Distribution only to the extent that, prior to the Closing, the amount thereof has actually been distributed to Seller or a wholly-owned Subsidiary of Seller (other than a Transferred Entity) and all indebtedness of all Subsidiaries in the chain of ownership at or above the level at which the sale or other disposition of an Asset occurred has been repaid in full (other than indebtedness under the Senior Credit Agreement and the Senior Subordinated Credit Agreement), net of all incentive, profit sharing, promote, participation or similar payments that are actually paid or required to be paid to current or former employees or consultants of Seller or any Subsidiary of Seller. Notwithstanding the foregoing, if the net adjustments pursuant to this Section 1.6(a) would otherwise result in a decrease of the Purchase Price in effect immediately excess of $1,000,000, then such actual amount of the decrease to the Purchase Price pursuant to this Section 1.6(a) shall be reduced by the lesser of (x) 50% of such excess amount or (y) $1,500,000. For example, (i) if the net adjustments pursuant to this Section 1.6(a) resulted in a decrease of the Purchase Price in the amount of $2,000,000, then the actual amount of the decrease to the Purchase Price pursuant to this Section 1.6(a) would be $1,500,000 and (ii) if the net adjustments pursuant to this Section 1.6(a) resulted in a decrease of the Purchase Price in the amount of $5,000,000, then the actual amount of the decrease to the Purchase Price pursuant to this Section 1.6(a) would be $3,500,000. (b) The Purchase Price shall be increased, on a dollar for dollar basis (but without duplication), to the extent Seller is deemed to have made an additional cash equity investment permitted hereunder in respect of any Asset (without duplication) on or after January 1, 2003 through and including the Closing Date. For purposes of this Section 1.6(b), Seller shall be deemed to have made an additional cash equity investment in respect of an Asset only to the extent that Seller or a wholly-owned Subsidiary of Seller (other than a Transferred Entity) has made an equity contribution of cash to a Transferred Entity. (c) In the event that Seller or any Subsidiary of Seller is required to make an election (a “Required Election”) pursuant to an Existing Transfer Obligation as to whether to (i) purchase an Equity Interest in an Entity that directly or indirectly owns an Asset (a “Subject Interest”) or (ii) sell a Covered Interest, then Seller shall give Buyer prompt written notice of such requirement, the relevant facts and circumstances relating to the Required Election (including, but not limited to, the requisite time period within which Seller or the applicable Subsidiary of Seller must notify the applicable third party of its election, and the specified purchase price) and, as reasonably requested by Buyer, such other facts and circumstances related to the Required Election. In addition, the following shall apply to any Required Election: (i) If, in Seller’s, the CB Parties’ and Buyer’s reasonable judgment, the date by which Seller or any Subsidiary of Seller must notify any third party of its determination with respect to a Required Election (the “Determination Date”) is to occur following the Closing Date, then neither Seller nor any such Subsidiary of Seller shall take any action regarding the Required Election (except as may be directed by Buyer pursuant to Section 9.3, if applicable). (ii) If, in Seller’s, the CB Parties’ and Buyer’s reasonable judgment, the Determination Date is to occur on or prior to the Closing Date, then Buyer shall (x) direct Seller, in writing and prior to the Determination Date, either to elect to (A) purchase the Subject Interest or (B) sell the Covered Interest, in each case, in such a manner as is consistent with the requirements of the Required Election, and subject to the terms of clauses (iii), (iv), (v) and (vi) below, and (y) remit to Seller, together with the foregoing written direction, immediately available funds equal to the purchase price for the Subject Interest, and Seller shall deposit such funds in an interest bearing escrow account pursuant to an escrow arrangement that is reasonably satisfactory to each of the Parties (the “Purchase Deposit”); (iii) If Buyer directs Seller to purchase the Subject Interest pursuant to clause (ii)(A) above, and the closing of such purchase is to occur at or prior to the anticipated Closing hereunder, then: (A) Seller shall take all such action as is necessary and required to make the Required Election and arrange to purchase the Subject Interest, and shall purchase the Subject Interest as contemplated herein utilizing the Purchase Deposit, and (B) if, in Buyer’s and the CB Parties’ reasonable judgment, any required Consent to transfer to Buyer or its designee the Subject Interest purchased by Seller or a Subsidiary of Seller (i) has been obtained, then Seller or any applicable Subsidiary of Seller shall promptly transfer the Subject Interest to Buyer or its designee, free and clear of all Encumbrances at the Closing, or (ii) has not been obtained, then Seller or the applicable Subsidiary of Seller shall hold the Subject Interest for the benefit of Buyer as if such interest was a Restricted Interest under Section 9.3. (iv) If Buyer directs Seller to purchase the Subject Interest pursuant to clause (ii)(A) above, and the closing of such purchase is to occur after the anticipated Closing hereunder, then: (A) Seller shall take all such action as is necessary and required to make the Required Election and to purchase the Subject Interest (but not close the transaction to purchase such interest), (B) If the Closing hereunder occurs and Seller has transferred to Buyer at Closing the Transferred Entity that is party to the subject Existing Transfer Obligation and the closing thereof has not occurred, Seller shall, at the Closing, return to Buyer the Purchase Deposit, together with all accrued interest thereon, and (C) If the Closing hereunder occurs and Seller has not transferred to Buyer at Closing the Transferred Entity that is party to the subject Existing Transfer Obligation, but rather holds such Covered Interests pursuant to Section 9.3, then Seller shall utilize the Purchase Deposit to acquire the Subject Interest on behalf of Buyer and continue to hold the Subject Interest pursuant to Section 9.3. (v) If Buyer directs Seller to sell the Covered Interest pursuant to clause (ii)(B) above, then (A) the applicable Covered Interest shall be excluded from the sale to Buyer pursuant to this Agreement in all respects and (B) the purchase price payable by Buyer pursuant to Section 1.2 of this Agreement shall be reduced by an amount equal to the sale price specified in the Required Election and Buyer’s direction to Seller pursuant to clause (ii)(y) above. (vi) If Seller or any Subsidiary of Seller purchases a Subject Interest as provided herein and the Closing hereunder shall not occur, then Seller or any Subsidiary of Seller shall have the option, exercisable in its sole discretion promptly after the time of determination that the Closing shall not occur, to (x) retain the purchased Subject Interest and promptly reimburse Buyer for the amount of the Purchase Deposit, together with all accrued interest thereon, or (y) take action with respect to the Subject Interest as contemplated by clause (iii)(B) above. (vii) If Buyer fails to provide to Seller the written direction required by clause (ii)(x) above, then (A) the applicable Covered Interest shall be excluded from the sale to Buyer pursuant to this Agreement in all respects and (B) the purchase price payable by Buyer pursuant to Section 1.2 of this Agreement shall be reduced by an amount equal to the price specified in the Required Election and related notices. (d) In the event of any material damage to or the destruction of any Asset that is real property (an “Affected Property”) prior to the Closing, Seller shall promptly notify Buyer and the CB Parties thereof. Subject to the terms of the following sentence, Buyer’s obligation to consummate the transactions set forth in this Agreement shall be unaffected by, and shall continue regardless of, any damage to or destruction of any Affected Property prior to Closing. Notwithstanding the foregoing, if any Affected Property shall be damaged by a casualty which is not covered for its full replacement cost (less any deductible) by the all risk insurance policy of the owner of such issue or saleAffected Property, then Buyer shall have the right to exclude from the Designated Interests being acquired by Buyer pursuant to this Agreement the Covered Interests relating to such Affected Property (the “Affected Interests”), in which case: (i) the Purchase Price shall be reduced to the price (calculated to the nearest $0.01) obtained by dividing (i) an amount equal to the sum Pro Rated Book Value of (A) the number of shares of capital stock outstanding, or deemed to be outstanding, immediately prior to such issue or sale multiplied by the Purchase Price prevailing immediately prior to such issue or sale plus (B) the consideration, if any, received by the Company upon such issue or sale, by Affected Property; and (ii) the total number Affected Interests shall not be sold and transferred to Buyer (or to Newco) at the Closing (or, if the Affected Interests were previously transferred into Newco by Seller or a Subsidiary of shares Seller, then Newco shall transfer such Affected Interests back to Seller or such Subsidiary of capital stock outstandingSeller prior to the Closing). (e) Notwithstanding anything to the contrary contained in this Agreement, the CB Parties shall have the right to exclude from the purchase and sale of the Designated Interests pursuant to this Agreement some or deemed to be outstandingall of the Designated Interests listed on Schedule 1.6(e) of the Disclosure Schedules, immediately after such issue or sale. Notwithstanding the foregoing, no adjustment of in which event the Purchase Price shall be made decreased, on a dollar for dollar basis, by the amount set forth on Schedule 1.6(e) of the Disclosure Schedules next to each excluded Designated Interest (but without duplication, to the extent that more than one excluded Designated Interest relates to the same Asset). The CB Parties may exercise the right afforded in an amount this Section 1.6(e) be delivery of written notice to Buyer and Seller no less than $0.01 per share, but any such lesser adjustment shall be carried forward and shall be made at ten (10) Business Days prior to the time of and together with the next subsequent adjustment which together with any adjustments so carried forward shall amount to $0.01 per share or moreClosing. (bf) The following issuance of the Company's securities shall not result in an adjustment Any increase or decrease in the Purchase Price: (i) stock issued Price pursuant to a bona fide, public offering of shares of Common Stock, registered under the Securities Act, pursuant this Section 1.6 shall be supported by documentation or other evidence reasonably satisfactory to a registration statement; (ii) stock issued pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof; (iii) stock issued pursuant to or in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise; (iv) stock issued upon the exercise of any warrants issued as of the date hereof (which do not have as their purpose an equity financing element) approved by the Board; (v) stock issued upon the exercise of one or more of the Warrants; or (vi) stock issued pursuant to options, warrants, rights or similar commitments obligating the Company to issue shares of its capital stock which are in existence as of the date hereofBuyer and Holding.

Purchase Price Adjustments. (a) If and whenever after the date hereof the Company shall issue or sell any shares of its capital stock Common Stock (except (i) upon exercise of this Warrant, (ii) upon conversion of the Preferred Stock (as set forth below defined in subparagraph 5.2(b))the Agreement) outstanding on the date hereof, (iii) upon exercise of options or other rights to purchase up to an aggregate of 2,278,000 shares of Common Stock issued or to be issued to employees, officers or directors of, or consultants or advisors to the Company pursuant to stock option plans or other arrangements that are approved by the Board of Directors of the Company, (iv) upon exercise of the warrants (the "Preferred Warrants") issued pursuant to that certain Promissory Note and Warrant Purchase Agreement dated as of May 22, 1998 among the Company and certain purchasers named therein, and (v) upon conversion of the Series B Preferred Stock, $0.001 par value per share, of the Company issuable upon exercise of the Preferred Warrants) for a consideration per share less than the Purchase Price in effect immediately prior to the time of such issue or sale, and/or the Company shall issue or sell any shares of its Common Stock for a consideration per share less than the Conversion Price on the date of such issue or sale, or shall be deemed under the provisions of this Section 5 to have effected any such issuance or sale, then, forthwith upon such issue or sale, the Purchase Price shall be reduced to the price (calculated to the nearest $0.010.0001) obtained by dividing (i) an amount equal multiplying the Purchase Price in effect immediately prior to the time of such issue or sale by a fraction, the numerator of which shall be the sum of (Ai) the number of shares of capital stock outstanding, or deemed to be outstanding, Common Stock outstanding immediately prior to such issue or sale multiplied by the Purchase Conversion Price prevailing immediately prior to such issue or sale plus (Bii) the consideration, if any, consideration received by the Company upon such issue or sale, by and the denominator of which shall be the product of (iiiii) the total number of shares of capital stock outstanding, or deemed to be outstanding, Common Stock outstanding immediately after such issue or sale, multiplied by (iv) the Conversion Price immediately prior to such issue or sale. Notwithstanding the foregoing, no adjustment of the Purchase Price shall be made in an amount less than $0.01 0.0001 per share, but any such lesser adjustment shall be carried forward and shall be made at the time of and together with the next subsequent adjustment which together with any adjustments so carried forward shall amount to $0.01 0.0001 per share or more. (b) The following issuance of the Company's securities shall not result in an adjustment in the Purchase Price: (i) stock issued pursuant to a bona fide, public offering of shares of Common Stock, registered under the Securities Act, pursuant to a registration statement; (ii) stock issued pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof; (iii) stock issued pursuant to or in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise; (iv) stock issued upon the exercise of any warrants issued as of the date hereof (which do not have as their purpose an equity financing element) approved by the Board; (v) stock issued upon the exercise of one or more of the Warrants; or (vi) stock issued pursuant to options, warrants, rights or similar commitments obligating the Company to issue shares of its capital stock which are in existence as of the date hereof.

Purchase Price Adjustments. (a) If during the one-year period commencing on the Closing Date and whenever after ending on the date hereof first anniversary of the Closing Date (the “Adjustment Period”), the Company shall issue issues or sell sells any shares of its Common Stock in a capital raising transaction to one or more institutional investors at a Per Share Selling Price (as defined below) lower than $2.70 (appropriately adjusted for any stock split, reverse stock split, stock dividend or other reclassification or combination of the Common Stock occurring after the Closing Date) (except as set forth below in subparagraph 5.2(b)the “Per Share Purchase Price”), for a consideration per share less than the Per Share Purchase Price in effect immediately prior of the Shares sold to the time of such issue or sale, the Purchase Price Investors hereunder shall be reduced adjusted downward to equal such lower Per Share Selling Price and the Investors shall be entitled to receive additional shares of Common Stock as provided in Section 7.9(c). The Company shall give to the price (calculated Investors written notice of any such issuance or sale within 24 hours of the closing of the related capital raising transaction. The term “Shares” as used in this Agreement shall include any shares issued to the nearest $0.01Investors pursuant to this Section 7.9. This Section 7.9 shall not apply to the Company’s issuance of shares of its Common Stock in a merger, acquisition, or other similar transaction. (b) obtained by dividing (i) an For the purposes of this Section 7.9, the term “Per Share Selling Price” shall include the amount equal to actually paid by third parties for each share of Common Stock without deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the sum of (A) the number Company in connection therewith. A sale of shares of capital stock outstandingCommon Stock shall include the sale or issuance of Common Stock Equivalents under which the Company is or may become obligated to issue shares of Common Stock, and in such circumstances the Per Share Selling Price of the Common Stock covered thereby shall also include the exercise or deemed conversion price thereof (in addition to be outstanding, immediately prior to such issue or sale multiplied by the Purchase Price prevailing immediately prior to such issue or sale plus (B) the consideration, if any, consideration received by the Company upon such issue sale or saleissuance). In case of any such security issued in a “Variable Rate Transaction” or an “MFN Transaction” (each as defined below), by (ii) the total number of shares of capital stock outstanding, or Per Share Selling Price shall be deemed to be outstandingthe lowest conversion or exercise price in effect at any time during the Adjustment Period in the case of a Variable Rate Transaction, immediately after or the lowest adjustment price in effect at any time during the Adjustment Period in the case of an MFN Transaction (regardless of whether shares of Common Stock are actually issued at such issue price). If an adjustment is made in accordance with the preceding sentence and the relevant conversion, exercise or sale. Notwithstanding adjustment price is subsequently reduced at any time during the foregoingAdjustment Period below the price in effect at the time such adjustment was made, no adjustment of the Purchase Price further adjustments shall be made in an amount less than $0.01 per share, but pursuant hereto to reflect any such lesser adjustment shall be carried forward and shall be made at the time of and together with the next subsequent adjustment which together with any adjustments so carried forward shall amount to $0.01 per share or morereductions. (b) The following issuance of the Company's securities shall not result in an adjustment in the Purchase Price: (i) stock issued pursuant to a bona fide, public offering of shares of Common Stock, registered under the Securities Act, pursuant to a registration statement; (ii) stock issued pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof; (iii) stock issued pursuant to or in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise; (iv) stock issued upon the exercise of any warrants issued as of the date hereof (which do not have as their purpose an equity financing element) approved by the Board; (v) stock issued upon the exercise of one or more of the Warrants; or (vi) stock issued pursuant to options, warrants, rights or similar commitments obligating the Company to issue shares of its capital stock which are in existence as of the date hereof.

Purchase Price Adjustments. The Purchase Price (i) shall be increased, dollar for dollar, by the amount by which the amount of long term indebtedness of the Company on the Closing Date is less than $7,500,000 and (ii) shall be decreased, dollar for dollar, by the amount by which the amount of long term indebtedness of the Company on the Closing Date exceeds $7,500,000. Purchaser and Sellers shall mutually determine, on the Closing Date, the reduction or increase in the Purchase Price, as the case may be. For purposes of this Section 2(b), the term "long term indebtedness" shall mean all indebtedness of the Company (as certified by the Chief Financial Officer of the Company at the Closing) including, without limitation, (a) If pursuant to the Company's Credit Agreement (hereinafter defined in Section 15(c)(vii) hereof) including the current portion thereof (other than the revolving credit portion of such facility), (b) pursuant to all capital leases to which the Company or Xxxxx X.X. (as defined in Section 4(a)(xv) hereof) is a party, and whenever (c) all other indebtedness of the Company for borrowed money (including, without limitation, purchase money debt and debt created pursuant to notes, agreements and other debt instruments), but excluding (x) any long term indebtedness secured by, and obtained in connection with, purchases of equipment acquired in connection with the performance of new hotel contracts with customers of the Company entered into after December 31, 1996 (which indebtedness is set forth on Schedule 2(b) hereof through the date hereof) and (y) trade payables incurred in the ordinary course of business in respect of which no note or other debt instrument has been entered into by the Company or Xxxxx X.X. For purposes of this Section 2(b), indebtedness of the Company shall include indebtedness of Xxxxx X.X. Sellers and the Company hereby covenant and agree that neither the Company nor Xxxxx X.X. shall pay any long term indebtedness other than in accordance with scheduled required payments and the Company shall not prepay any such long term indebtedness between the date hereof and the Company shall issue Closing. If any sums due pursuant to this Section 2(b) are later determined to have been calculated in error, the obligations of Purchaser or sell any shares of its capital stock (except Sellers, as set forth below in subparagraph 5.2(b))the case may be, for a consideration per share less than the Purchase Price in effect immediately prior to the time of such issue or sale, further adjust the Purchase Price shall be reduced to survive the price (calculated to the nearest $0.01) obtained by dividing (i) an amount equal to the sum of (A) the number of shares of capital stock outstanding, or deemed to be outstanding, immediately prior to such issue or sale multiplied by the Purchase Price prevailing immediately prior to such issue or sale plus (B) the consideration, if any, received by the Company upon such issue or sale, by (ii) the total number of shares of capital stock outstanding, or deemed to be outstanding, immediately after such issue or sale. Notwithstanding the foregoing, no adjustment of the Purchase Price shall be made in an amount less than $0.01 per share, but any such lesser adjustment shall be carried forward and shall be made at the time of and together with the next subsequent adjustment which together with any adjustments so carried forward shall amount to $0.01 per share or moreClosing Date. (b) The following issuance of the Company's securities shall not result in an adjustment in the Purchase Price: (i) stock issued pursuant to a bona fide, public offering of shares of Common Stock, registered under the Securities Act, pursuant to a registration statement; (ii) stock issued pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of the date hereof; (iii) stock issued pursuant to or in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise; (iv) stock issued upon the exercise of any warrants issued as of the date hereof (which do not have as their purpose an equity financing element) approved by the Board; (v) stock issued upon the exercise of one or more of the Warrants; or (vi) stock issued pursuant to options, warrants, rights or similar commitments obligating the Company to issue shares of its capital stock which are in existence as of the date hereof.

Purchase Price Adjustments. (a) If and whenever after the date hereof The Exercise Price shall be subject to adjustment as follows: 1. In case the Company shall issue or sell any shares of Common Stock (i) by way of split-up of outstanding shares of Common Stock, or (ii) by way of dividends payable in Common Stock, the Exercise Price thereafter shall be immediately adjusted and the adjusted Exercise Price shall be equal to the quotient determined by dividing (A) the product of the total number of shares of Common Stock outstanding immediately prior to such issuance multiplied by the Exercise Price in effect immediately prior to such issuance by (B) the total number of shares of Common Stock outstanding immediately after such issuance. 2. No reorganization of the Company and no consolidation or merger thereof with or into any other corporation or corporations and no conveyance of all or substantially all of the assets of the Company to any other corporation shall be made unless, as a part of such reorganization, consolidation or merger or conveyance arrangements shall be made whereby the Holder of this Warrant shall thereafter be entitled to convert the same into a warrant or warrants for any stock, securities or other assets given in exchange for the Common Stock of the Company on such reorganization, or in connection with such consolidation, merger or conveyance, in such amount and with an Exercise Price for such value (but not below the par value of the securities subject to the new warrant) as would, at the time, have been given in exchange for the Common Stock. The Company shall not increase the par value per share of any stock or securities issuable under the Warrant to an amount more than $0.01 per share. 3. In case the Company, by reclassification of its capital stock Common Stock or by amendment to its Certificate of Incorporation, shall reduce the number of shares of such Common Stock outstanding, the Exercise Price thereafter shall be immediately adjusted, and the adjusted Exercise Price shall be determined by multiplying the number of shares of Common Stock outstanding immediately before such reduction by the then Exercise Price and the resulting product shall be divided by the reduced number of shares of Common Stock outstanding, and the quotient resulting from such division (except as set forth below in subparagraph 5.2(b))or the par value of the Common Stock, whichever is higher) shall be the Exercise Price after such adjustment, until a further adjustment of the Exercise Price of the Common Stock shall be required to be made by reason of a further reduction of the number of shares of such Common Stock outstanding. 4. If the Company at any time or from time to time after the date of this Warrant issues any additional shares of Common Stock for a consideration per share less than the Purchase Exercise Price in effect immediately prior to the time issuance of such issue additional shares, or salewithout consideration (other than pursuant to a transaction covered by Paragraphs IV.D.1. or 3. above) then, and thereafter successively upon each such issuance, but only if the following calculation shall result in a reduction of the Exercise Price, the Purchase Exercise Price in effect immediately prior to the issuance of such additional shares shall forthwith be reduced to the a price (calculated to the nearest $0.01) obtained determined by dividing (ia) an amount equal to the sum of (Ai) the total number of shares of capital stock outstanding, Common Stock outstanding immediately following the last previous adjustment of the Exercise Price pursuant to this Paragraph IV.D. (or deemed to be outstanding, on the date of this Warrant if there shall have been no previous adjustment) multiplied by the Exercise Price in effect immediately prior to such issue or sale multiplied by the Purchase Price prevailing immediately prior to such issue or sale issuance, plus (Bii) the consideration, if any, received or deemed to have been received by the Company upon such issue issuance and upon the issuance of any Common Stock issued subsequent to the last previous adjustment of the Exercise Price pursuant to this Paragraph IV.D. (or salesubsequent to the date of this Warrant if there shall have been no such previous adjustment), by (iib) the total number of shares of capital stock outstanding, or deemed to be outstanding, Common Stock outstanding immediately after such issue or sale. Notwithstanding the foregoing, no adjustment of the Purchase Price shall be made in an amount less than $0.01 per share, but any such lesser adjustment shall be carried forward and shall be made at the time of and together with the next subsequent adjustment which together with any adjustments so carried forward shall amount to $0.01 per share or more. (b) The following issuance of such additional shares. Without limiting the Company's securities shall not result in an adjustment in foregoing this Paragraph IV.D. applies to the Purchase Price: (i) stock issued pursuant to a bona fide, public offering issuance of shares of Common Stock, registered under the Securities Act, pursuant to a registration statement; (ii) stock issued pursuant to the conversion or exercise of convertible or exercisable securities outstanding as of warrants issuable by the date hereof; (iii) stock issued Company pursuant to or in connection with a bona fide business acquisition the Agreement to Issue Warrants of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise; (iv) stock issued upon the exercise of any warrants issued as of the even date hereof (which do not have as their purpose an equity financing element) approved by the Board; (v) stock issued upon the exercise of one or more of the Warrants; or (vi) stock issued pursuant to options, warrants, rights or similar commitments obligating herewith between the Company to issue shares of its capital stock which are in existence as of the date hereof.and ProFutures Bridge Capital Fund, L.P.

Purchase Price Adjustments. (a) If and whenever after the date hereof the Company shall issue or sell any shares The Stock Consideration portion of its capital stock (except as set forth below in subparagraph 5.2(b)), for a consideration per share less than the Purchase Price in effect immediately prior to the time of such issue or sale, the Purchase Price shall be reduced adjusted as follows: (i) The Stock Consideration shall be adjusted upward by the following ("Seller's Credits") with the number of shares of Common Stock increased based on the closing stock price on the Closing Date: (A) the value of (i) all Inventory Hydrocarbons relating to the Purchased Assets, such value to be based upon the existing contract price for crude oil or natural gas, as applicable, in effect as of the Effective Time, less severance taxes, transportation fees and other fees deducted by the purchaser of such oil or gas, such oil and gas to be measured at the Effective Time by the operators of the Purchased Assets; and (calculated ii) the value of all of Seller's unsold inventory of gas plant products, if any, attributable to the nearest $0.01Assets at the Effective Time valued in the same manner as if such products had been sold under the contract then in existence between Seller and the purchaser of such products or, if there is no such contract, valued in the same manner as if said products had been sold at the posted price in the field for said products; (B) obtained the amount of all production expenses, operating expenses and all other expenditures (excluding the compensation paid to Seller under Section 11.1(d), below) attributable to the ownership or operation of the Purchased Assets after the Effective Time and paid by dividing Seller prior to the Closing Date in accordance with Section 11.1; (iC) the amount of all ad valorem, property, production, excise, severance and similar taxes and assessments (but not including income taxes), which taxes and assessments accrue to the Purchased Assets after the Effective Time, and are paid by Seller; (D) the amount of any Hydrocarbon underbalances as provided in Article 18; and (E) any other amount agreed upon by Seller and Buyer in writing prior to Closing. (ii) The Stock Consideration shall be adjusted downward by the following ("Buyer's Credits") with the number of shares of Common Stock being reduced based on the closing stock price on the Closing Date: (A) the total collected sales value of all Hydrocarbons sold by the Seller after the Effective Time, all of which are attributable to the Purchased Assets, and any other monies collected by the Seller with respect to the ownership of the Purchased Assets after the Effective Time, but excepting interest income attributable thereto. (B) the amount of all unpaid ad valorem, property, production, excise, severance and similar taxes and assessments (but not including income taxes), which taxes and assessments accrue to the Purchased Assets prior to the Effective Time, which amount shall, where possible, be computed based upon the tax rate and values applicable to the tax period in question; otherwise, the amount of the adjustment under this paragraph shall be computed based upon such taxes assessed against the applicable portion of the Purchased Assets for the immediately preceding tax period just ended; (C) an amount equal to any Preferential Purchase Rights or Consents as provided in Article 10; (D) an amount equal to the sum value of (A) the number of shares of capital stock outstandingall Title Defects, or deemed to be outstanding, immediately prior to such issue or sale multiplied by the Purchase Price prevailing immediately prior to such issue or sale plus (B) the consideration, if any, received by the Company upon such issue or sale, by (ii) the total number of shares of capital stock outstanding, or deemed to be outstanding, immediately after such issue or sale. Notwithstanding the foregoing, no adjustment of the Purchase Price shall be made as provided in an amount less than $0.01 per share, but any such lesser adjustment shall be carried forward and shall be made at the time of and together with the next subsequent adjustment which together with any adjustments so carried forward shall amount to $0.01 per share or moreSection 8.3. (bE) The following issuance of the Company's securities shall not result in an adjustment in the Purchase Price: (i) stock issued pursuant to a bona fide, public offering of shares of Common Stock, registered under the Securities Act, pursuant to a registration statement; (ii) stock issued pursuant amount equal to the conversion or exercise value of convertible or exercisable securities outstanding all Environmental Defects, as of provided in Section 7.3; (F) the date hereof; (iii) stock issued pursuant to or in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise; (iv) stock issued upon the exercise amount of any warrants issued Hydrocarbon overbalances as of the date hereof (which do not have as their purpose an equity financing element) approved by the Boardprovided in Article 18; (v) stock issued upon the exercise of one or more of the Warrants; or (vi) stock issued pursuant to options, warrants, rights or similar commitments obligating the Company to issue shares of its capital stock which are in existence as of the date hereof.and