Common use of Share Issuances Clause in Contracts

Share Issuances. FPL shall not, nor shall it permit any of its subsidiaries to issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or any Option with respect thereto (other than (i) the issuance of FPL Common Stock upon the exercise of FPL Employee Stock Options in accordance with their terms, (ii) the issuance of FPL Common Stock in respect of target performance share awards, shareholder value awards and restricted stock awards granted under the FPL Option Plans in accordance with their terms, (iii) the issuance of FPL Employee Stock Options and the grant of equity awards pursuant to the FPL Option Plans in accordance with their terms providing, in aggregate, up to an additional 3,400,000 shares of FPL Common Stock, provided, however, that any FPL Employee Stock Options and equity awards granted after the date of this Agreement (other than any such FPL Employee Stock Options or equity awards granted to the FPL officers whose names are set forth in Section 4.01(d) of the FPL Disclosure Letter) shall be granted on terms pursuant to which such FPL Employee Stock Options and equity awards shall not vest on the FPL Shareholder Approval or otherwise on the occurrence of the transactions contemplated hereby, and shall, at the FPL Effective Time, be converted into options or equity-based awards to acquire or in respect of, as applicable, Company Common Stock in the manner contemplated by Section 5.06, (iv) the issuance of FPL Preferred Stock in respect of FPL Rights, (v) the issuance of shares of capital stock in connection with the refinancing of capital stock in accordance with Section 4.01(c)(iv)(D) and (vi) the pro rata issuance by a subsidiary of its capital stock to its shareholders), or modify or amend any right of any holder of outstanding shares of capital stock or Options with respect thereto other than to give effect to Section 5.06.

Share Issuances. FPL Entergy shall not, nor shall it permit any of its subsidiaries to issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or any Option with respect thereto (other than (i) the issuance of FPL Entergy Common Stock upon the exercise of FPL Entergy Employee Stock Options in accordance with their terms, (ii) the issuance of FPL Entergy Common Stock in respect of target performance share awards, shareholder value awards and restricted stock awards granted under the FPL Entergy Option Plans in accordance with their terms, (iii) the issuance of FPL Entergy Employee Stock Options and the grant of equity awards pursuant to the FPL Entergy Option Plans in accordance with their terms providing, in aggregate, up to an additional 3,400,000 15,000,000 shares of FPL Entergy Common Stock, provided, however, that any FPL Entergy Employee Stock Options and equity awards granted after the date of this Agreement (other than any such FPL Entergy Employee Stock Options or equity awards granted to the FPL Entergy officers whose names are set forth in Section 4.01(d4.02(d) of the FPL Entergy Disclosure Letter) shall be granted on terms pursuant to which such FPL Entergy Employee Stock Options and equity awards shall not vest on the FPL Shareholder Entergy Shareholders Approval or otherwise on the occurrence of the transactions contemplated hereby, and shall, at the FPL Entergy Effective Time, be converted into options or equity-equity- based awards to acquire or in respect of, as applicable, Company Common Stock in the manner contemplated by Section 5.06, (iv) the issuance of FPL Preferred Stock in respect of FPL Rights, (v) the issuance of shares of capital stock in connection with the refinancing of capital stock in accordance with Section 4.01(c)(iv)(D4.02(c)(iv)(D) and (viv) the pro rata issuance by a subsidiary of its capital stock to its shareholders), or modify or amend any right of any holder of outstanding shares of capital stock or Options with respect thereto other than to give effect to Section 5.06.

Share Issuances. FPL Subject to the provisions of this Section 3.4, if the Borrower shall not, nor shall it permit at any time prior to the conversion or repayment in full of its subsidiaries to issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, Principal Amount issue any shares of Common Stock to a person other than the Holder (except (i) pursuant to Subsections A or B above; (ii) pursuant to options, warrants, or other obligations to issue shares outstanding on the date hereof, including the Warrant issued pursuant to the Purchase Agreement, as disclosed to Holder in writing or as disclosed in any Exchange Act Filings; (iii) pursuant to options or other securities that may be issued under any employee incentive plan adopted by the Borrower; (iv) issuance of any securities within five (5) business days of the date hereof, in an offering registered with the Securities and Exchange Commission; (v) issuance of any securities pursuant to a joint venture, technology licensing or research and development arrangements or pursuant to arrangements for the development, manufacture, distribution, marketing or sale of Borrower's (or its subsidiaries') products or services; (vi) issuance of any securities pursuant to a merger, consolidation, sale of all or substantially all of the assets, sale or exchange of capital stock or any Option with respect thereto other similar transaction; or (other than (ivii) the issuance of FPL Common Stock upon the exercise of FPL Employee Stock Options in accordance with their termsany securities, (ii) the issuance of FPL Common Stock in respect of target performance share awards, shareholder value awards and restricted stock awards granted under the FPL Option Plans in accordance with their terms, (iii) the issuance of FPL Employee Stock Options and the grant of equity awards pursuant without regard to the FPL Option Plans in accordance with their terms providingpurpose therefor, in aggregate, up to an additional 3,400,000 shares of FPL Common Stock, provided, however, that any FPL Employee Stock Options and equity awards granted after during the 30-day period succeeding the date of this Agreement Note) for a consideration per share (other the "Offer Price") less than any the Fixed Conversion Price in effect at the time of such FPL Employee Stock Options or equity awards granted issuance, then the Fixed Conversion Price shall be immediately reset pursuant to the FPL officers whose names are set forth in Section 4.01(d) of the FPL Disclosure Letter) shall be granted on terms pursuant to which such FPL Employee Stock Options and equity awards shall not vest on the FPL Shareholder Approval or otherwise on the occurrence of the transactions contemplated herebyformula below. For purposes hereof, and shall, at the FPL Effective Time, be converted into options or equity-based awards to acquire or in respect of, as applicable, Company Common Stock in the manner contemplated by Section 5.06, (iv) the issuance of FPL Preferred any security of the Borrower convertible into or exercisable or exchangeable for Common Stock shall result in respect an adjustment to the Fixed Conversion Price at the time of FPL Rights, (v) the issuance of such securities. If the Corporation issues any additional shares of capital stock in connection with the refinancing of capital stock in accordance with Section 4.01(c)(iv)(D) and (vi) the pro rata issuance by a subsidiary of its capital stock to its shareholders), or modify or amend any right of any holder of outstanding shares of capital stock or Options with respect thereto other than to give effect pursuant to Section 5.06.3.4 above, then and thereafter successively upon each such issue, the Fixed Conversion Price shall be adjusted by multiplying the then applicable Fixed Conversion Price by the following fraction: ------------------------------ A + B ------------------------------ (A + B) + [((C - D) x B) / C] ------------------------------ A = Actual shares outstanding prior to such offering B = Actual shares sold in the offering C = Fixed Conversion Price D = Offering price

Share Issuances. FPL Entergy shall not, nor shall it permit any of its subsidiaries to issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or any Option with respect thereto (other than (i) the issuance of FPL Entergy Common Stock upon the exercise of FPL Entergy Employee Stock Options in accordance with their terms, (ii) the issuance of FPL Entergy Common Stock in respect of target performance share awards, shareholder value awards and restricted stock awards granted under the FPL Entergy Option Plans in accordance with their terms, (iii) the issuance of FPL Entergy Employee Stock Options and the grant of equity awards pursuant to the FPL Entergy Option Plans in accordance with their terms providing, in aggregate, up to an additional 3,400,000 15,000,000 shares of FPL Entergy Common Stock, provided, however, that any FPL Entergy Employee Stock Options and equity awards granted after the date of this Agreement (other than any such FPL Entergy Employee Stock Options or equity awards granted to the FPL Entergy officers whose names are set forth in Section 4.01(d4.02(d) of the FPL Entergy Disclosure Letter) shall be granted on terms pursuant to which such FPL Entergy Employee Stock Options and equity awards shall not vest on the FPL Shareholder Entergy Shareholders Approval or otherwise on the occurrence of the transactions contemplated hereby, and shall, at the FPL Entergy Effective Time, be converted into options or equity-based awards to acquire or in respect of, as applicable, Company Common Stock in the manner contemplated by Section 5.06, (iv) the issuance of FPL Preferred Stock in respect of FPL Rights, (v) the issuance of shares of capital stock in connection with the refinancing of capital stock in accordance with Section 4.01(c)(iv)(D4.02(c)(iv)(D) and (viv) the pro rata issuance by a subsidiary of its capital stock to its shareholders), or modify or amend any right of any holder of outstanding shares of capital stock or Options with respect thereto other than to give effect to Section 5.06.

Share Issuances. FPL Subject to the provisions of this Section 3.4, if the Borrower shall notat any time prior to the conversion or repayment in full of the Principal Amount issue any shares of Common Stock or securities convertible into Common Stock to a person other than the Holder (except (i) pursuant to Subsections A or B above; (ii) pursuant to options, nor shall it permit warrants or other obligations to issue shares outstanding on the date hereof as disclosed to Holder in writing; (iii) pursuant to options that may be issued under any employee incentive stock option and/or any qualified stock option plan adopted by the Borrower; (iv) for issuances to officers, employees or directors of the Borrower or any of its subsidiaries Subsidiaries; (v) with respect to issueup to 10,000 shares of Common Stock (as calculated on the date hereof and appropriately adjusted for any subdivision, deliver combination or sellsimilar event) issued to consultants of the Borrower in any fiscal month of the Borrower; or (vi) issuances made by the Borrower as consideration for the acquisition of assets or property or the acquisition of any business or entity, so long as such shares of Common Stock so issued (or securities convertible into Common Stock so issued) are not registered under a registration statement with the SEC and do not become freely or publicly traded in any respect until so permitted under Rule 144 of the Securities Act of 1933 (as amended)) for a consideration per share (the “Offer Price”) less than any Fixed Conversion Price in effect at the time of such issuance, then in the event that the Offer Price is less than or equal to $1.21 (as such amount shall be adjusted from time to time following the occurrence of any event described in either Sections 3.4(b)A or 3.4(b)D (or any event similar to that described in either of Sections 3.4(b)A or 3.4(b)D)) (as adjusted, the “Closing Date Market Price”), such Fixed Conversion Price applicable to a portion of the outstanding principal amount of this Note (and all interest, fees, costs and expenses related thereto) equal to the fair market value of the aggregate consideration paid for, or authorize or propose the issuanceattributable to, delivery or sale of, any such shares of Common Stock or securities convertible into Common Stock (the “Aggregate Consideration”) shall be immediately reset to such lower Offer Price at the time of issuance of such securities (provided that, in the event that the outstanding principal amount of this Note is greater than the respective Aggregate Consideration, the Holder shall determine in its capital stock or any Option with respect thereto (other than sole discretion which portion of the outstanding principal amount of the Note shall have a “reset” Fixed Conversion Price as a result of such issuance). For example, in the event that (i) the issuance of FPL Common Stock upon Offer Price is less than or equal to the exercise of FPL Employee Stock Options in accordance with their terms, Closing Date Market Price and (ii) the issuance Aggregate Consideration equals $1,000,000, a Fixed Conversion Price applicable a principal amount of FPL Common Stock this Note equal to $1,000,000 (plus all interest, fees, costs and expenses related thereto) shall be reset to the Offer Price if the Offer Price is less than such Fixed Conversion Price in respect effect at the time of target performance share awardssuch issuance. For purposes hereof, shareholder value awards and restricted stock awards granted under the FPL Option Plans in accordance with their terms, (iii) the issuance of FPL Employee any security of the Borrower convertible into or exercisable or exchangeable for Common Stock Options and the grant of equity awards pursuant shall result in an adjustment to the FPL Option Plans in accordance with their terms providing, in aggregate, up to an additional 3,400,000 shares of FPL Common Stock, provided, however, that any FPL Employee Stock Options and equity awards granted after the date of this Agreement (other than any such FPL Employee Stock Options or equity awards granted to the FPL officers whose names are set forth in Section 4.01(d) of the FPL Disclosure Letter) shall be granted on terms pursuant to which such FPL Employee Stock Options and equity awards shall not vest on the FPL Shareholder Approval or otherwise on the occurrence of the transactions contemplated hereby, and shall, Fixed Conversion Price at the FPL Effective Time, be converted into options or equity-based awards to acquire or in respect of, as applicable, Company Common Stock in the manner contemplated by Section 5.06, (iv) the time of issuance of FPL Preferred Stock in respect of FPL Rights, (v) the issuance of shares of capital stock in connection with the refinancing of capital stock in accordance with Section 4.01(c)(iv)(D) and (vi) the pro rata issuance by a subsidiary of its capital stock to its shareholders), or modify or amend any right of any holder of outstanding shares of capital stock or Options with respect thereto other than to give effect to Section 5.06such securities.

Share Issuances. FPL Subject to the provisions of this Section 3.4, if the Borrower shall not, nor shall it permit at any time prior to the conversion or repayment in full of its subsidiaries to issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, Principal Amount issue any shares of its capital stock Common Stock or any Option with respect thereto (securities convertible into Common Stock to a person other than the Holder (except (i) pursuant to Subsections A or B above; (ii) pursuant to options, warrants, or other obligations to issue shares outstanding on the date hereof as disclosed to Holder in writing; (iii) pursuant to options that may be issued under any employee incentive stock option and/or any qualified stock option plan adopted by the Borrower; (iv) pursuant to the Vendor Compensation Plan; (v) in connection with any strategic merger or acquisition approved by AdStar’s Board of Directors (vi) for up to 50,000 shares of Common Stock issued by the Borrower in any single transaction (subject to an aggregate limit of up to 100,000 shares of Common Stock in any consecutive 12 month period) or (vii) pursuant to conversion privileges or exercise rights of any presently outstanding securities, including anti-dilution provisions thereof (to the extent disclosed by the Borrower on the date hereof on Schedule 4.3 to the Purchase Agreement) for a consideration per share (the “Offer Price”) less than the Fixed Conversion Price in effect at the time of such issuance, then the Fixed Conversion Price shall be immediately reset pursuant to the formula below: If the Corporation issues any additional shares pursuant to this Section 3.4, then, and thereafter successively upon each such issue, the Fixed Conversion Price shall be adjusted by multiplying the then applicable Fixed Conversion Price by the following fraction: A = Actual shares outstanding prior to such offering B = Actual shares sold in the offering C = Fixed Conversion Price D = Offering price [establish how this will be calculated] For purposes hereof, the issuance of FPL any security of the Borrower convertible into or exercisable or exchangeable for Common Stock upon shall result in an adjustment to the exercise Fixed Conversion Price at the time of FPL Employee Stock Options in accordance with their terms, (ii) the issuance of FPL Common Stock in respect of target performance share awards, shareholder value awards and restricted stock awards granted under the FPL Option Plans in accordance with their terms, (iii) the issuance of FPL Employee Stock Options and the grant of equity awards pursuant to the FPL Option Plans in accordance with their terms providing, in aggregate, up to an additional 3,400,000 shares of FPL Common Stock, provided, however, that any FPL Employee Stock Options and equity awards granted after the date of this Agreement (other than any such FPL Employee Stock Options or equity awards granted to the FPL officers whose names are set forth in Section 4.01(d) of the FPL Disclosure Letter) shall be granted on terms pursuant to which such FPL Employee Stock Options and equity awards shall not vest on the FPL Shareholder Approval or otherwise on the occurrence of the transactions contemplated hereby, and shall, at the FPL Effective Time, be converted into options or equity-based awards to acquire or in respect of, as applicable, Company Common Stock in the manner contemplated by Section 5.06, (iv) the issuance of FPL Preferred Stock in respect of FPL Rights, (v) the issuance of shares of capital stock in connection with the refinancing of capital stock in accordance with Section 4.01(c)(iv)(D) and (vi) the pro rata issuance by a subsidiary of its capital stock to its shareholders), or modify or amend any right of any holder of outstanding shares of capital stock or Options with respect thereto other than to give effect to Section 5.06securities.

Share Issuances. FPL Subject to the provisions of this Section 3.4, if the Borrower shall not, nor shall it permit at any time prior to the conversion or repayment in full of its subsidiaries to issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, Principal Amount issue any shares of its capital stock Common Stock or any Option with respect thereto (securities convertible into Common Stock to a person other than the Holder (except (i) the issuance of FPL Common Stock upon the exercise of FPL Employee Stock Options in accordance with their terms, pursuant to Subsections A or B above; (ii) pursuant to currently outstanding options, warrants, or other rights to acquire the issuance of FPL Common Stock of the Borrower outstanding on the date hereof as disclosed in respect the Borrower’s Securities Exchange Act of target performance share awards, shareholder value awards and restricted 1934 filings or as disclosed to to Holder in writing; or (iii) pursuant to securities that may be issued under any employee stock awards option and/or any stock plan adopted by the Borrower) (iv) pursuant to stock options and/or stock granted under the FPL Option Plans in accordance with their termsBorrower’s stock option plan for Borrower’s officers, (iii) the issuance of FPL Employee Stock Options directors, employees and the grant of equity awards advisors pursuant to arrangements, plans or contracts approved by the FPL Option Plans Borrower’s board of directors; (v) upon conversion of any preferred stock of the Borrower outstanding on the date hereof, or (vi) in accordance connection with their terms providing, in aggregate, up to an additional 3,400,000 shares acquisition transactions approved by the Borrower’s board of FPL Common Stock, directors provided, however, that the aggregate consideration for any FPL Employee Stock Options and equity awards granted after individual acquisition f shall not exceed $2,500,000 in the date aggregate, without the prior written consent of this Agreement Laurus, which consent shall not be unreasonably withheld) for a consideration per share (other the “Offer Price”) less than any the Fixed Conversion Price in effect at the time of such FPL Employee Stock Options or equity awards granted to issuance, then the FPL officers whose names are set forth in Section 4.01(d) of the FPL Disclosure Letter) Fixed Conversion Price shall be granted on terms pursuant immediately reset to which such FPL Employee Stock Options and equity awards shall not vest on the FPL Shareholder Approval or otherwise on the occurrence of the transactions contemplated herebylower Offer Price. For purposes hereof, and shall, at the FPL Effective Time, be converted into options or equity-based awards to acquire or in respect of, as applicable, Company Common Stock in the manner contemplated by Section 5.06, (iv) the issuance of FPL Preferred any security of the Borrower convertible into or exercisable or exchangeable for Common Stock shall result in respect an adjustment to the Fixed Conversion Price at the time of FPL Rights, (v) the issuance of shares of capital stock in connection with the refinancing of capital stock in accordance with Section 4.01(c)(iv)(D) and (vi) the pro rata issuance by a subsidiary of its capital stock to its shareholders), or modify or amend any right of any holder of outstanding shares of capital stock or Options with respect thereto other than to give effect to Section 5.06such securities.

Share Issuances. Except as disclosed in Section 4.02(d) of the FPL Group Disclosure Letter, FPL Group shall not, nor shall it permit any of its subsidiaries to (i) issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of FPL Group Capital Stock, any other voting security or Equity Interest of FPL Group or any of its capital stock subsidiaries, any FPL Group Voting Debt, or any FPL Group Other Equity-Based Awards or any Option with respect thereto to any of the foregoing (other than (iA) the issuance of FPL Group Common Stock upon the exercise of FPL Group Employee Stock Options and Gexa Warrants in accordance with their terms, (iiB) the issuance of FPL Group Common Stock in respect of target performance share awards, shareholder value awards and restricted stock awards the vesting or exercise of FPL Group Other Equity-Based Awards granted under the FPL Option Group Stock Plans, the terms of which contemplate such issuance of FPL Group Common Stock, in accordance with their terms, (C) the grant of FPL Group Employee Stock Options, FPL Group Restricted Stock and FPL Group Other Equity-Based Awards pursuant to the FPL Group Stock Plans in accordance with their terms, (iii) providing for the issuance of FPL Employee Stock Options and the grant of equity awards pursuant up to the FPL Option Plans in accordance with their terms providing5,500,000 additional shares, in aggregate, up to an additional 3,400,000 shares of FPL Group Common Stock, Stock or equivalents thereof (provided, however, that any FPL Group Employee Stock Options Options, FPL Group Restricted Stock and equity awards FPL Group Other Equity-Based Awards granted after the date of this Agreement (other than any such FPL Employee Stock Options or equity awards granted to the FPL officers whose names are set forth in Section 4.01(d) of the FPL Disclosure Letter) shall be granted on terms pursuant to which such FPL Group Employee Stock Options Options, FPL Group Restricted Stock and equity awards FPL Group Other Equity-Based Awards (1) shall not vest on the FPL Group Shareholder Approval or otherwise on in connection with the occurrence of the transactions contemplated hereby, (2) shall not be cashed out or terminated in connection with the occurrence of the transactions contemplated hereby, (3) shall not entitle the holders thereof to any future grants of stock options or other awards (including any “replacement option” grants), whether in connection with the occurrence of the transactions contemplated hereby or otherwise, and (4) shall, at the FPL Effective Time, be converted into options or other equity-based awards to acquire or in respect of, as applicable, Company Constellation Common Stock in the manner contemplated by Section 5.06), (ivD) the issuance of FPL Group Preferred Stock in respect of FPL Group Rights, (v) the issuance of shares of capital stock in connection with the refinancing of capital stock in accordance with Section 4.01(c)(iv)(D) and (viE) the pro rata issuance by a subsidiary of its capital stock to its shareholders), (F) the issuance of FPL Group Common Stock in accordance with the terms of the FPL Group Equity Units and (G) the issuance of FPL Group Common Stock pursuant to (1) the FPL Group DRIP and (2) the FPL Group Thrift Plans in the ordinary course of business consistent with past practice or (ii) modify or amend any right of any holder of outstanding shares of capital stock FPL Group Capital Stock, any other voting security or Options Equity Interest of FPL Group or any of its subsidiaries, any FPL Group Voting Debt, any FPL Group Other Equity-Based Awards or any Option with respect thereto to any of the foregoing, in each case other than to give effect to Section 5.06.

Share Issuances. FPL Subject to the provisions of this Section 2.6, if the Company shall not, nor shall it permit at any time prior to the conversion or repayment in full of its subsidiaries to issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, Principal Amount issue any shares of its capital stock Common Stock or any Option with respect thereto (securities convertible into Common Stock to a Person other than the Holder (except (i) pursuant to Sections 2.6(a) or (b) above; (ii) pursuant to options, warrants, or other obligations to issue shares outstanding on the date hereof as disclosed to the Holder in writing; or (iii) pursuant to options that may be issued under any employee incentive stock option and/or any qualified stock option plan adopted by the Company) for a consideration per share (the "OFFER PRICE") less than the Fixed Conversion Price in effect at the time of such issuance, then the Fixed Conversion Price shall be immediately reset pursuant to the formula set forth below. For purposes hereof, the issuance of FPL any security of the Company convertible into or exercisable or exchangeable for Common Stock shall result in an adjustment to the Fixed Conversion Price upon the exercise of FPL Employee Stock Options in accordance with their terms, (ii) the issuance of FPL Common Stock in respect of target performance share awards, shareholder value awards and restricted stock awards granted under the FPL Option Plans in accordance with their terms, (iii) the issuance of FPL Employee Stock Options and the grant of equity awards such securities pursuant to the FPL Option Plans in accordance with their terms providing, in aggregate, up to an formula below. If the Company issues any additional 3,400,000 shares of FPL Common StockStock for a consideration per share less than the then-applicable Fixed Conversion Price pursuant to this Section 3.6 then, providedand thereafter successively upon each such issue, however, that any FPL Employee Stock Options and equity awards granted after the date Fixed Conversion Price shall be adjusted by multiplying the then applicable Fixed Conversion Price by the following fraction: ----------------------------- A + B ` ----------------------------- (A + B) + [((C - D) x B) / C] ----------------------------- A = Total amount of this Agreement (other than any such FPL Employee Stock Options or equity awards granted shares convertible pursuant to the FPL officers whose names are set forth in Section 4.01(d) of the FPL Disclosure Letter) shall be granted on terms pursuant to which such FPL Employee Stock Options and equity awards shall not vest on the FPL Shareholder Approval or otherwise on the occurrence of the transactions contemplated hereby, and shall, at the FPL Effective Time, be converted into options or equity-based awards to acquire or in respect of, as applicable, Company Common Stock Notes B = Actual shares sold in the manner contemplated by Section 5.06, (iv) the issuance of FPL Preferred Stock in respect of FPL Rights, (v) the issuance of shares of capital stock in connection with the refinancing of capital stock in accordance with Section 4.01(c)(iv)(D) and (vi) the pro rata issuance by a subsidiary of its capital stock to its shareholders), or modify or amend any right of any holder of outstanding shares of capital stock or Options with respect thereto other than to give effect to Section 5.06.offering C = Fixed Conversion Price D = Offer Price

Share Issuances. FPL Cinergy shall not, nor shall it permit any of its subsidiaries to issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or any Option with respect thereto (other than (i) the issuance of FPL Cinergy Common Stock upon the exercise of FPL Cinergy Employee Stock Options outstanding as of the date hereof or issued after the date hereof in accordance with the terms of this Agreement in accordance with their terms, (ii) the issuance of FPL Cinergy Common Stock in respect of target performance share awards, shareholder value awards and restricted stock other equity compensation awards granted under the FPL Cinergy Employee Stock Option Plans outstanding as of the date hereof or issued after the date hereof in accordance with the terms of this Agreement in accordance with their terms, (iii) the issuance of FPL Cinergy Employee Stock Options and the grant of other equity compensation awards pursuant to the FPL Cinergy Employee Stock Option Plans in accordance with their terms providing, in aggregate, up to an additional 3,400,000 2,000,000 shares of FPL Cinergy Common StockStock in any 12-month period following the date hereof, provided, however, that any FPL Cinergy Employee Stock Options and equity awards granted after the date of this Agreement (other than any such FPL Employee Stock Options or equity awards granted shall, subject to the FPL officers whose names are set forth in paragraph 4 of Section 4.01(d4.01(i) of the FPL Cinergy Disclosure Letter) shall , be granted on terms pursuant to which such FPL Cinergy Employee Stock Options and equity awards shall not vest on the FPL Cinergy Shareholder Approval or otherwise on the occurrence of the transactions contemplated hereby, provided, further, however, that Cinergy Employee Stock Options and equity awards granted after the date of this Agreement may vest upon termination of employment by the Company or any of its subsidiaries without “cause” or by the participants for “good reason” (each as defined in the applicable agreement), in each case, within the two-year period following the Cinergy Effective Time, and shall, at the FPL Cinergy Effective Time, be converted into options or equity-equity- based awards to acquire or in respect of, as applicable, Company Common Stock in the manner contemplated by Section 5.06, and (iv) the issuance of FPL Preferred Stock in respect of FPL Rights, (v) the issuance of shares of capital stock in connection with the refinancing of capital stock in accordance with Section 4.01(c)(iv)(D) and (vi) the pro rata issuance by a subsidiary of its capital stock to its shareholders, provided, further, subject to Section 4.01(d) of the Cinergy Disclosure Letter, that any shares of Cinergy Common Stock that Cinergy or its subsidiaries shall contribute, directly or indirectly, to any employee benefit plan (including any plan intended to satisfy the requirements of Section 401(a) of the Code) or that Cinergy or its subsidiaries shall make subject to any dividend reinvestment or similar plan shall be shares purchased in open-market or privately negotiated transactions, but shall not constitute newly issued shares of Cinergy Common Stock), or modify or amend any right of any holder of outstanding shares of its capital stock or Options any Option with respect thereto other than to give effect to Section 5.06.

Share Issuances. FPL Subject to the provisions of this Section 3.5, if the Borrower shall not, nor shall it permit at any time prior to the conversion or repayment in full of its subsidiaries to issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, Principal Amount issue any shares of its capital stock Common Stock or any Option with respect thereto (securities convertible into Common Stock to a person other than the Holder (except (i) pursuant to Subsections A or B above; (ii) pursuant to options, warrants or other obligations to issue shares outstanding on the date hereof as disclosed to Holder in writing, including, without limitation, shares issuable upon the conversion of warrants issued on or prior to the date hereof and held by Burnham Securities or its affiliates and shares issuable upon conversxxx xx that certain $100,000 promissory note of AC Technical Ltd. issued prior to the date hereof in favor of Rachel Heller; or (iii) pursuant to options that may be issued undxx xxx xxxxxxxe incentive stock option and/or any qualified stock option plan adopted by the Borrower; (iv) pursuant to securities issued to the original Holder on the date hereof; or (v) pursuant to securities issued in connection with acquisitions or strategic transactions the primary purpose of which is not raising capital, so long as, in the case of this clause (v), such shares of Common Stock so issued (or securities convertible into Common Stock so issued) are restricted and do not become freely or publicly traded in any respect prior to the two year anniversary of the issuance thereof) for a consideration per share (the "OFFER PRICE") less than any Fixed Conversion Price in effect at the time of such issuance, then such Fixed Conversion Price applicable to a portion of the outstanding principal amount of this Note (and all interest, fees, costs and expenses related thereto) equal to the fair market value of the aggregate consideration paid for, or attributable to, such shares of Common Stock or securities convertible into Common Stock (the "Aggregate Consideration") shall be immediately reset to such lower Offer Price at the time of issuance of such securities (provided that, in the event that the outstanding principal amount of this Note is greater than the respective Aggregate Consideration, the Holder shall determine in its sole discretion which portion of the outstanding principal amount of this Note shall have a "reset" Fixed Conversion Price as a result of such issuance). For example, in the event that the Aggregate Consideration equals $1,000,000, a Fixed Conversion Price applicable a principal amount of this Note equal to $1,000,000 (plus all interest, fees, costs and expenses related thereto) shall be reset to the Offer Price if the Offer Price is less than such Fixed Conversion Price in effect at the time of such issuance. For purposes hereof, the issuance of FPL any security of the Borrower convertible into or exercisable or exchangeable for Common Stock upon shall result in an adjustment to the exercise Fixed Conversion Price at the time of FPL Employee Stock Options in accordance with their terms, (ii) the issuance of FPL Common Stock in respect of target performance share awards, shareholder value awards and restricted stock awards granted under the FPL Option Plans in accordance with their terms, (iii) the issuance of FPL Employee Stock Options and the grant of equity awards pursuant to the FPL Option Plans in accordance with their terms providing, in aggregate, up to an additional 3,400,000 shares of FPL Common Stock, provided, however, that any FPL Employee Stock Options and equity awards granted after the date of this Agreement (other than any such FPL Employee Stock Options or equity awards granted to the FPL officers whose names are set forth in Section 4.01(d) of the FPL Disclosure Letter) shall be granted on terms pursuant to which such FPL Employee Stock Options and equity awards shall not vest on the FPL Shareholder Approval or otherwise on the occurrence of the transactions contemplated hereby, and shall, at the FPL Effective Time, be converted into options or equity-based awards to acquire or in respect of, as applicable, Company Common Stock in the manner contemplated by Section 5.06, (iv) the issuance of FPL Preferred Stock in respect of FPL Rights, (v) the issuance of shares of capital stock in connection with the refinancing of capital stock in accordance with Section 4.01(c)(iv)(D) and (vi) the pro rata issuance by a subsidiary of its capital stock to its shareholders), or modify or amend any right of any holder of outstanding shares of capital stock or Options with respect thereto other than to give effect to Section 5.06securities.

Share Issuances. FPL Subject to the provisions of this Section 3.4, if the Borrower shall not, nor shall it permit at any time prior to the conversion or repayment in full of its subsidiaries to issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, Principal Amount issue any shares of its capital stock Common Stock or any Option with respect thereto (securities convertible into Common Stock to a person other than the Holder (except (i) pursuant to Subsections A or B above; (ii) pursuant to options, warrants or other obligations to issue shares outstanding on the date hereof as disclosed to Holder in writing or as set forth in Borrower’s Exchange Act Filings or in any schedule to the Purchase Agreement; (iii) with respect to shares of Common Stock or options or warrants to purchase Common Stock, in each case issued to to employees, officers, or directors, of the Borrower pursuant to any stock or option plan or grant duly adopted by the Board of Directors of the Borrower or (iv) with respect to no more than, in the aggregate 50,000 shares per quarter of Common Stock (or options or warrants to purchase Common Stock), issued to consultants of the Company (as calculated on the date hereof and appropriately adjusted for any subdivision, combination or similar event), so long as such shares of Common Stock (or options or warrants to purchase Common Stock) are restricted and do not become freely or publicly traded in any respect prior to the two year anniversary of the issuance thereof) for a consideration per share (the “Offer Price”) less than the Fixed Conversion Price in effect at the time of such issuance, then the Fixed Conversion Price shall be immediately reset to such lower Offer Price at the time of issuance of such securities. For purposes hereof, the issuance of FPL any security of the Borrower convertible into or exercisable or exchangeable for Common Stock upon shall result in an adjustment to the exercise Fixed Conversion Price at the time of FPL Employee Stock Options in accordance with their terms, (ii) the issuance of FPL Common Stock in respect of target performance share awards, shareholder value awards and restricted stock awards granted under the FPL Option Plans in accordance with their terms, (iii) the issuance of FPL Employee Stock Options and the grant of equity awards pursuant to the FPL Option Plans in accordance with their terms providing, in aggregate, up to an additional 3,400,000 shares of FPL Common Stock, provided, however, that any FPL Employee Stock Options and equity awards granted after the date of this Agreement (other than any such FPL Employee Stock Options or equity awards granted to the FPL officers whose names are set forth in Section 4.01(d) of the FPL Disclosure Letter) shall be granted on terms pursuant to which such FPL Employee Stock Options and equity awards shall not vest on the FPL Shareholder Approval or otherwise on the occurrence of the transactions contemplated hereby, and shall, at the FPL Effective Time, be converted into options or equity-based awards to acquire or in respect of, as applicable, Company Common Stock in the manner contemplated by Section 5.06, (iv) the issuance of FPL Preferred Stock in respect of FPL Rights, (v) the issuance of shares of capital stock in connection with the refinancing of capital stock in accordance with Section 4.01(c)(iv)(D) and (vi) the pro rata issuance by a subsidiary of its capital stock to its shareholders), or modify or amend any right of any holder of outstanding shares of capital stock or Options with respect thereto other than to give effect to Section 5.06securities.

Share Issuances. FPL Subject to the provisions of this Section 3.4, if the Borrower shall not, nor shall it permit at any time prior to the conversion or repayment in full of its subsidiaries to issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, Principal Amount issue any shares of Common Stock to a person other than the Holder (except (i) pursuant to Subsections A or B above; (ii) pursuant to options, warrants, or other obligations to issue shares outstanding on the date hereof, including the Warrant issued pursuant to the Purchase Agreement, as disclosed to Holder in writing or as disclosed in any Exchange Act Filings; (iii) pursuant to options or other securities that may be issued under any employee incentive plan adopted by the Borrower; (iv) issuance of any securities within five (5) business days of the date hereof, in an offering registered with the Securities and Exchange Commission; (v) issuance of any securities pursuant to a joint venture, technology licensing or research and development arrangements or pursuant to arrangements for the development, manufacture, distribution, marketing or sale of Borrower's (or its subsidiaries') products or services; (vi) issuance of any securities pursuant to a merger, consolidation, sale of all or substantially all of the assets, sale or exchange of capital stock or any Option with respect thereto other similar transaction; or (other than (ivii) the issuance of FPL Common Stock upon the exercise of FPL Employee Stock Options in accordance with their termsany securities, (ii) the issuance of FPL Common Stock in respect of target performance share awards, shareholder value awards and restricted stock awards granted under the FPL Option Plans in accordance with their terms, (iii) the issuance of FPL Employee Stock Options and the grant of equity awards pursuant without regard to the FPL Option Plans in accordance with their terms providingpurpose therefor, in aggregate, up to an additional 3,400,000 shares of FPL Common Stock, provided, however, that any FPL Employee Stock Options and equity awards granted after during the 30-day period succeeding the date of this Agreement Note) for a consideration per share (other the "Offer Price") less than any the Fixed Conversion Price in effect at the time of such FPL Employee Stock Options or equity awards granted issuance, then the Fixed Conversion Price shall be immediately reset pursuant to the FPL officers whose names are set forth in Section 4.01(d) of the FPL Disclosure Letter) shall be granted on terms pursuant to which such FPL Employee Stock Options and equity awards shall not vest on the FPL Shareholder Approval or otherwise on the occurrence of the transactions contemplated herebyformula below. For purposes hereof, and shall, at the FPL Effective Time, be converted into options or equity-based awards to acquire or in respect of, as applicable, Company Common Stock in the manner contemplated by Section 5.06, (iv) the issuance of FPL Preferred any security of the Borrower convertible into or exercisable or exchangeable for Common Stock shall result in respect an adjustment to the Fixed Conversion Price at the time of FPL Rights, (v) the issuance of such securities. If the Corporation issues any additional shares of capital stock in connection with the refinancing of capital stock in accordance with Section 4.01(c)(iv)(D) and (vi) the pro rata issuance by a subsidiary of its capital stock to its shareholders), or modify or amend any right of any holder of outstanding shares of capital stock or Options with respect thereto other than to give effect pursuant to Section 5.06.3.4 above, then and thereafter successively upon each such issue, the Fixed Conversion Price shall be adjusted by multiplying the then applicable Fixed Conversion Price by the following fraction: -------------------------------------- A + B -------------------------------------- (A + B) + [((C - D) x B) / C] -------------------------------------- A = Actual shares outstanding prior to such offering B = Actual shares sold in the offering C = Fixed Conversion Price D = Offering price

Share Issuances. FPL Subject to the provisions of this Section 2.5, if ROIE shall not, nor shall it permit at any time (after the date hereof) prior to the conversion or repayment in full of its subsidiaries to issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, Principal Amount issue any shares of its capital stock Common Stock or any Option with respect thereto (securities convertible into Common Stock to a person other than the Holder (except (i) pursuant to Subsections A or B above; (ii) pursuant to options, warrants, or other obligations to issue shares outstanding on the date hereof as disclosed to Holder in writing; or (iii) pursuant to options that may be issued under any employee incentive stock option and/or any qualified stock option plan adopted by ROIE) for a consideration per share (the "OFFER PRICE") less than the Fixed Conversion Price in effect at the time of such issuance, then the Fixed Conversion Price shall be immediately reset pursuant to the formula below. For purposes hereof, the issuance of FPL any security of ROIE convertible into or exercisable or exchangeable for Common Stock for a consideration per share less than the then applicable Fixed Conversion Price shall result in an adjustment to the Fixed Conversion Price as set forth below. If ROIE issues any additional shares of Common Stock for a consideration per share less than the then-applicable Fixed Conversion Price pursuant to this Section 3.5 then, and thereafter successively upon each such issue, the Fixed Conversion Price shall be adjusted by multiplying the then applicable Fixed Conversion Price by the following fraction: A + B -------------------------------------- (A + B) + [((C - D) x B) / C] -------------------------------------- A = Total amount of shares convertible pursuant to the Notes. B = Actual shares sold in the offering C = Fixed Conversion Price D = Offering price Such adjustment shall become effective immediately upon the earlier to occur of the date of issuance of such shares of Common Stock or the record date for the determination of stockholders entitled to receive the convertible securities, as the case may be. If all of the shares of Common Stock subject to such convertible securities have not been issued when such convertible securities expire, then the Fixed Conversion Price shall promptly be readjusted to the Fixed Conversion Price that would then be in effect had the adjustment upon the issuance of such convertible securities been made on the basis of the actual number of shares of Common Stock issued upon the exercise of FPL Employee Stock Options in accordance with their termssuch convertible securities. For the purpose of this paragraph (C), (ii) the issuance number of FPL shares of Common Stock at any time outstanding shall not include shares held in the treasury of ROIE. ROIE will not issue any shares of Common Stock or rights, warrants, convertible or exchangeable securities in respect of target performance share awards, shareholder value awards and restricted stock awards granted under the FPL Option Plans in accordance with their terms, (iii) the issuance of FPL Employee Stock Options and the grant of equity awards pursuant to the FPL Option Plans in accordance with their terms providing, in aggregate, up to an additional 3,400,000 shares of FPL Common Stock, provided, however, that any FPL Employee Stock Options and equity awards granted after the date of this Agreement (other than any such FPL Employee Stock Options or equity awards granted to the FPL officers whose names are set forth in Section 4.01(d) of the FPL Disclosure Letter) shall be granted on terms pursuant to which such FPL Employee Stock Options and equity awards shall not vest on the FPL Shareholder Approval or otherwise on the occurrence of the transactions contemplated hereby, and shall, at the FPL Effective Time, be converted into options or equity-based awards to acquire or in respect of, as applicable, Company Common Stock held in the manner contemplated by Section 5.06, (iv) the issuance treasury of FPL Preferred Stock in respect of FPL Rights, (v) the issuance of shares of capital stock in connection with the refinancing of capital stock in accordance with Section 4.01(c)(iv)(D) and (vi) the pro rata issuance by a subsidiary of its capital stock to its shareholders), or modify or amend any right of any holder of outstanding shares of capital stock or Options with respect thereto other than to give effect to Section 5.06ROIE.

Share Issuances. FPL Subject to the provisions of this Section 3.4, if the Borrower shall not, nor shall it permit at any time prior to the conversion or repayment in full of its subsidiaries to issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, Principal Amount issue any shares of Common Stock to a person other than the Holder (except (i) pursuant to Subsections A or B above; (ii) pursuant to options, warrants, or other obligations to issue shares outstanding on the date hereof, including the Warrant issued pursuant to the Purchase Agreement, as disclosed to Holder in writing or as disclosed in any Exchange Act Filings; (iii) pursuant to options or other securities that may be issued under any employee incentive plan adopted by the Borrower; (iv) issuance of any securities within five (5) business days of the date hereof, in an offering registered with the Securities and Exchange Commission; (v) issuance of any securities pursuant to a joint venture, technology licensing or research and development arrangements or pursuant to arrangements for the development, manufacture, distribution, marketing or sale of Borrower's (or its subsidiaries') products or services; (vi) issuance of any securities pursuant to a merger, consolidation, sale of all or substantially all of the assets, sale or exchange of capital stock or any Option with respect thereto other similar transaction; or (other than (ivii) the issuance of FPL Common Stock upon the exercise of FPL Employee Stock Options in accordance with their termsany securities, (ii) the issuance of FPL Common Stock in respect of target performance share awards, shareholder value awards and restricted stock awards granted under the FPL Option Plans in accordance with their terms, (iii) the issuance of FPL Employee Stock Options and the grant of equity awards pursuant without regard to the FPL Option Plans in accordance with their terms providingpurpose therefor, in aggregate, up to an additional 3,400,000 shares of FPL Common Stock, provided, however, that any FPL Employee Stock Options and equity awards granted after during the 30-day period succeeding the date of this Agreement Note) for a consideration per share (other the "Offer Price") less than any the Fixed Conversion Price in effect at the time of such FPL Employee Stock Options or equity awards granted issuance, then the Fixed Conversion Price shall be immediately reset pursuant to the FPL officers whose names are set forth in Section 4.01(d) of the FPL Disclosure Letter) shall be granted on terms pursuant to which such FPL Employee Stock Options and equity awards shall not vest on the FPL Shareholder Approval or otherwise on the occurrence of the transactions contemplated herebyformula below. For purposes hereof, and shall, at the FPL Effective Time, be converted into options or equity-based awards to acquire or in respect of, as applicable, Company Common Stock in the manner contemplated by Section 5.06, (iv) the issuance of FPL Preferred any security of the Borrower convertible into or exercisable or exchangeable for Common Stock shall result in respect an adjustment to the Fixed Conversion Price at the time of FPL Rights, (v) the issuance of such securities. If the Corporation issues any additional shares of capital stock in connection with the refinancing of capital stock in accordance with Section 4.01(c)(iv)(D) and (vi) the pro rata issuance by a subsidiary of its capital stock to its shareholders), or modify or amend any right of any holder of outstanding shares of capital stock or Options with respect thereto other than to give effect pursuant to Section 5.06.3.4 above, then and thereafter successively upon each such issue, the Fixed Conversion Price shall be adjusted by multiplying the then applicable Fixed Conversion Price by the following fraction: ---------------------------------------- A + B ---------------------------------------- (A + B) + [((C - D) x B) / C] ---------------------------------------- A = Actual shares outstanding prior to such offering B = Actual shares sold in the offering C = Fixed Conversion Price D = Offering price

Share Issuances. FPL Subject to the provisions of this Section 3.4, if the Borrower shall not, nor shall it permit at any time prior to the conversion or repayment in full of its subsidiaries to issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, Principal Amount issue any shares of its capital stock Common Stock or any Option with respect thereto (securities convertible into Common Stock to a person other than the Holder (except (i) the issuance of FPL Common Stock securities issued upon the conversion or exercise of FPL Employee Stock Options in accordance with their termsany securities issued pursuant to this Note, the Purchase Agreement or the Related Agreement; (ii) securities issued upon the issuance conversion or exercise of FPL any convertible securities, options, warrants or other obligations to issue shares outstanding on the date hereof; iii) securities issued upon the conversion or exercise of any notes (up to $15 million, including the Note) or warrants (to purchase up to 2,250,000 shares of Common Stock, including the Warrant) issued on or about the date hereof and upon the same terms and conditions as the Notes and/or Warrants; iv) shares of Common Stock in respect or options to employees, officers or directors of target performance share awards, shareholder value awards and restricted stock awards granted under the FPL Option Plans in accordance with their terms, (iii) the issuance of FPL Employee Stock Options and the grant of equity awards Company pursuant to the FPL Option Plans in accordance with their terms providing, in aggregate, up to an additional 3,400,000 shares of FPL Common Stock, provided, however, that any FPL Employee Stock Options and equity awards granted after employee stock or option plan and/or any qualified stock option plan adopted by the date of this Agreement (other than any such FPL Employee Stock Options or equity awards granted to the FPL officers whose names are set forth in Section 4.01(d) of the FPL Disclosure Letter) shall be granted on terms pursuant to which such FPL Employee Stock Options and equity awards shall not vest on the FPL Shareholder Approval or otherwise on the occurrence of the transactions contemplated hereby, and shall, at the FPL Effective Time, be converted into options or equity-based awards to acquire or in respect of, as applicable, Company Common Stock in the manner contemplated by Section 5.06, (iv) the issuance of FPL Preferred Stock in respect of FPL Rights, Borrower; (v) the securities issued pursuant to any acquisition or strategic transactions, provided that such issuance of shares of capital stock shall only be to a Person which is, itself or through its subsidiaries, an operating company in connection a business synergistic with the refinancing business of the Borrower or any of Borrowers subsidiaries and in which the Borrower receives benefits in additional to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital stock or to an entity whose primary business is investing in accordance with Section 4.01(c)(iv)(D) securities; and (vi) up to, in the pro rata aggregate, $1,000,000 shares of Common Stock or equivalents in any 12 month period to consultants as payment for service rendered) for a consideration per share (the "Offer Price") less than the Fixed Conversion Price in effect at the time of such issuance, then the Fixed Conversion Price shall be immediately reset to such lower Offer Price pursuant to the formula below ("Subsequent Offering"). For purposes hereof, the issuance by a subsidiary of its capital stock to its shareholders), or modify or amend any right of any holder security of outstanding the Borrower convertible into or exercisable or exchangeable for Common Stock shall result in an adjustment to the Fixed Conversion Price at the time of issuance of such securities. If the Company issues any additional shares of capital stock or Options with respect thereto other than to give effect pursuant to Section 5.06.3.4 above then, and thereafter successively upon each such issue, the Fixed Conversion Price shall be adjusted by multiplying the then applicable Fixed Conversion Price by the following fraction: A = Total amount of shares convertible pursuant to this Note. B = Actual shares sold in the offering C = Fixed Conversion Price D = Offering price