Common use of Rights to Participate Clause in Contracts

Rights to Participate. From and after the date hereof until a Termination Event, if any, Investor shall be entitled to a participation right to purchase or subscribe up to that number of additional shares of capital stock (including as "capital stock" for purposes of this Section 3.2, any security, option, warrant, call, commitment, subscription, right to purchase or other agreement of any character that is convertible into or exchangeable or redeemable for shares of capital stock of the Company or any Subsidiary (and all references in this Section 3.2 to capital stock shall, as appropriate, be deemed to be references to any such securities), and also including additional shares of capital stock to be issued pursuant to the conversion, exchange or redemption of any security, option, warrant, call, commitment, subscription, right to purchase or other agreement of a character that is convertible into or exchangeable or redeemable for shares of capital stock, as if the price at which such additional shares of capital stock is issued pursuant to any such conversion, exchange or redemption were the market price on the date of such issuance) to be issued or sold by the Company which represents the same proportion (the "shareholder percentage") of the total number of shares of capital stock to be issued or sold by the Company (including the shares of capital stock to be issued to Investor upon exercise of its participation rights hereunder; it being understood and agreed that the Company will accordingly be required to either increase the number of shares of capital stock to be issued or sold so that Investor may purchase additional shares to maintain its proportionate interest, or to reduce the number of shares of capital stock to be issued or sold to Persons other than Investor) as is represented by the number of shares of Company Common Stock owned by Investor prior to such sale or issuance (and including for this purpose any shares of Company Common Stock to be acquired pursuant to the Stock Purchase Agreement, but not yet issued) relative to the number of shares of Company Common Stock outstanding prior to such sale or issuance (and including for this purpose any shares of Company Common Stock to be acquired pursuant to the Stock Purchase Agreement, but not yet issued) (but in no event more than 49.9% of the total number of shares of capital stock to be issued or sold by the Company at all subsequent offerings); provided, however, that the provisions of this Section 3.2 shall not to apply to (i) the issuance or sale by the Company of any of its capital stock issued to the Company or any of its Subsidiaries or pursuant to options, rights or warrants or other commitments or securities in effect or outstanding on the date of the Stock Purchase Agreement (including without limitation, any options issued or to be issued pursuant to the Employment Agreements), (ii) the issuance of capital stock pursuant to the conversion, exchange or redemption of any other capital stock, but shall, without limitation, apply to the issuance by the Company of any of its capital stock pursuant to benefit, option, stock purchase, or other similar plans or arrangements, including pursuant to or upon the exercise of options, rights, warrants, or other securities or agreements (including those issued pursuant to the Company's benefit plans) and (iii) the issuance of stock for consideration other than cash; provided further, however, that in the case of debt securities of the Company that entitle the Investor to participation rights hereunder, such participation rights shall apply only to the issuance of such debt securities, i.e., the Investor shall have participation rights with respect to such debt securities, and shall have whatever conversion rights to which holders of such debt securities are entitled, but shall have no other participation rights with respect thereto and the Investor shall only have the right to acquire such debt securities themselves. Notwithstanding the foregoing, any participation rights provided for in this Section which arise as a result of the exception contained in clause (ii) of the preceding sentence shall be deferred until such time as participation rights shall otherwise arise under this Section 3.

Rights to Participate. From and after the date hereof until a Termination Event, if any, Investor shall be entitled to a participation right to purchase or subscribe up to that number of additional shares of capital stock (including as "capital stock" for purposes of this Section 3.2, any security, option, warrant, call, commitment, subscription, right to purchase or other agreement of any character that is convertible into or exchangeable or redeemable for shares of capital stock of the Company or any Subsidiary (and all references in this Section 3.2 to capital stock shall, as appropriate, be deemed to be references to any such securities), and also including additional shares of capital stock to be issued pursuant to the conversion, exchange or redemption of any security, option, warrant, call, commitment, subscription, right to purchase or other agreement of a character that is convertible into or exchangeable or redeemable for shares of capital stock, as if the price at which such additional shares of capital stock is issued pursuant to any such conversion, exchange or redemption were the market price on the date of such issuance) to be issued or sold by the Company which represents the same proportion (the "shareholder percentage") of the total number of shares of capital stock to be issued or sold by the Company (including the shares of capital stock to be issued to Investor upon exercise of its participation rights hereunder; it being understood and agreed that the Company will accordingly be required to either increase the number of shares of capital stock to be issued or sold so that Investor may purchase additional shares to maintain its proportionate interest, or to reduce the number of shares of capital stock to be issued or sold to Persons other than Investor) as is represented by the number of shares of Company Common Stock owned Beneficially Owned by Investor prior to such sale or issuance (and including for this purpose any shares of Company Common Stock to be acquired pursuant to the Stock Purchase Agreement, but not yet issued) relative to the number of outstanding shares of Company Common Stock outstanding Stock, on an Adjusted Fully Diluted basis, prior to such sale or issuance (and including for this purpose any shares of Company Common Stock to be acquired pursuant to the Stock Purchase Agreement, but not yet issued) (but in no event more than 49.935.8% of the total number of shares of capital stock to be issued or sold by the Company at all subsequent offerings); provided, however, that the provisions of this Section 3.2 shall not to apply to (i) the issuance or sale by the Company of any of its capital stock issued to the Company or any of its Subsidiaries or pursuant to options, rights or warrants or other commitments or securities in effect or outstanding on the date as of the Stock Purchase Agreement July 14, 1997 (including without limitation, any options issued or to be issued pursuant to the Employment Agreements), (ii) the issuance of capital stock pursuant to the conversion, exchange or redemption of any other capital stock, but shall, without limitation, apply to the issuance by the Company of any of its capital stock pursuant to benefit, option, stock purchase, or other similar plans or arrangements, including pursuant to or upon the exercise of options, rights, warrants, or other securities or agreements (including those issued pursuant to the Company's benefit plans) and (iii) the issuance of stock for consideration other than cash; provided further, however, that in the case of debt securities of the Company that entitle the Investor to participation rights hereunder, such participation rights shall apply only to the issuance of such debt securities, i.e., the Investor shall have participation rights with respect to such debt securities, and shall have whatever conversion rights to which holders of such debt securities are entitled, but shall have no other participation rights with respect thereto and the Investor shall only have the right to acquire such debt securities themselves. Notwithstanding the foregoing, any participation rights provided for in this Section which arise as a result of the exception contained in clause (ii) of the preceding sentence shall be deferred until such time as participation rights shall otherwise arise under this Section 33.2. The provisions of this Section 3.2 shall apply to the Convertible Debt only upon conversion, in which event the Company agrees from time to time to issue the number of additional shares necessary to permit the Buyer to maintain its shareholder percentage (as defined above), provided that the purchase price for such shares shall be the closing price of the Company Common Stock on the date of each such conversion; provided further that the Company shall provide the Buyer within 15 days after the end of each calendar quarter with a schedule of the conversions during such quarter (and the related closing prices for the Common Stock on the dates of conversion), the number of additional shares of Common Stock the Buyer is entitled to purchase hereunder and the purchase price therefor; provided further that Buyer shall have until 15 days after receipt of such schedule to purchase such additional shares. Any conversion or exercise of securities acquired by Investor pursuant to this Section 3.2 shall be deferred by Investor if it would result in Investor's share percentage exceeding 49.9%.

Rights to Participate. From and after the date hereof until a Termination Event, if any, Investor shall be entitled to a participation right to purchase or subscribe up to that number of additional shares of capital stock (including as "capital stock" for purposes of this Section 3.2, any security, option, warrant, call, commitment, subscription, right to purchase or other agreement of any character that is convertible into or exchangeable or redeemable for shares of capital stock of the Company or any Subsidiary (and all references in this Section 3.2 to capital stock shall, as appropriate, be deemed to be references to any such securities), and also including additional shares of capital stock to be issued pursuant to the conversion, exchange or redemption of any security, option, warrant, call, commitment, subscription, right to purchase or other agreement of a character that is convertible into or exchangeable or redeemable for shares of capital stock, as if the price at which such additional shares of capital stock is issued pursuant to any such conversion, exchange or redemption were the market price on the date of such issuance) to be issued or sold by the Company which represents the same proportion (the "shareholder percentage") of the total number of shares of capital stock to be issued or sold by the Company (including the shares of capital stock to be issued to Investor upon exercise of its participation rights hereunder; it being understood and agreed that the Company will accordingly be required to either increase the number of shares of capital stock to be issued or sold so that Investor may purchase additional shares to maintain its proportionate interest, or to reduce the number of shares of capital stock to be issued or sold to Persons other than Investor) as is represented by the number of shares of Company Common Stock owned Beneficially Owned by Investor prior to such sale or issuance (and including for this purpose any shares of Company Common Stock to be acquired pursuant to the Stock Purchase Agreement, but not yet issued) relative to the number of outstanding shares of Company Common Stock outstanding Stock, on an Adjusted Fully Diluted basis, prior 10 11 to such sale or issuance (and including for this purpose any shares of Company Common Stock to be acquired pursuant to the Stock Purchase Agreement, but not yet issued) (but in no event more than 49.935.8% of the total number of shares of capital stock to be issued or sold by the Company at all subsequent offerings); provided, however, that the provisions of this Section 3.2 shall not to apply to (i) the issuance or sale by the Company of any of its capital stock issued to the Company or any of its Subsidiaries or pursuant to options, rights or warrants or other commitments or securities in effect or outstanding on the date as of the Stock Purchase Agreement July 14, 1997 (including without limitation, any options issued or to be issued pursuant to the Employment Agreements), (ii) the issuance of capital stock pursuant to the conversion, exchange or redemption of any other capital stock, but shall, without limitation, apply to the issuance by the Company of any of its capital stock pursuant to benefit, option, stock purchase, or other similar plans or arrangements, including pursuant to or upon the exercise of options, rights, warrants, or other securities or agreements (including those issued pursuant to the Company's benefit plans) and (iii) the issuance of stock for consideration other than cash; provided further, however, that in the case of debt securities of the Company that entitle the Investor to participation rights hereunder, such participation rights shall apply only to the issuance of such debt securities, i.e., the Investor shall have participation rights with respect to such debt securities, and shall have whatever conversion rights to which holders of such debt securities are entitled, but shall have no other participation rights with respect thereto and the Investor shall only have the right to acquire such debt securities themselves. Notwithstanding the foregoing, any participation rights provided for in this Section which arise as a result of the exception contained in clause (ii) of the preceding sentence shall be deferred until such time as participation rights shall otherwise arise under this Section 33.2. The provisions of this Section 3.2 shall apply to the Convertible Debt only upon conversion, in which event the Company agrees from time to time to issue the number of additional shares necessary to permit the Buyer to maintain its shareholder percentage (as defined above), provided that the purchase price for such shares shall be the closing price of the Company Common Stock on the date of each such conversion; provided further that the Company shall provide the Buyer within 15 days after the end of each calendar quarter with a schedule of the conversions during such quarter (and the related closing prices for the Common Stock on the dates of conversion), the number of additional shares of Common Stock the Buyer is entitled to purchase hereunder and the purchase price therefor; provided further that Buyer shall have until 15 days after receipt of such schedule to purchase such additional shares. Any conversion or exercise of securities acquired by Investor pursuant to this Section 3.2 shall be deferred by Investor if it would result in Investor's share percentage exceeding 49.9%.