Common use of Tender and Exchange Offers Clause in Contracts

Tender and Exchange Offers. If the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer for the Common Shares, to the extent that the cash and value of any other consideration (as determined by the Board of Directors of the Company acting in good faith and in a commercially reasonable manner) included in the payment per share of the Common Shares exceeds the Quoted Price on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Exercise Price in effect immediately prior to the close of business on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer shall be decreased by multiplying such Exercise Price by a fraction (not to be greater than 1): (i) the numerator of which shall be the product of (x) the number of Common Shares outstanding immediately prior to the date such tender or exchange offer expires (prior to giving effect to the purchase of all Common Shares accepted for purchase or exchange in such tender or exchange offer) and (y) the Quoted Price on the Trading Day next succeeding the date such tender or exchange offer expires; and (ii) the denominator of which shall be the sum of (x) aggregate value of all cash and any other consideration (as determined by the Board of Directors of the Company in good faith and in a commercially reasonable manner) paid or payable for Common Shares purchased in such tender or exchange offer and (y) the product of (A) the Quoted Price on the Trading Day next succeeding the date such tender or exchange offer expires and (B) the number of Common Shares outstanding immediately after the date such tender or exchange offer expires (after giving effect to the purchase of all Common Shares accepted for purchase or exchange in such tender or exchange offer). Any adjustment under this Section 5.1(e) shall, subject to Section 5.1(f)(iv), become effective immediately prior to the opening of business on the day after the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer.

Tender and Exchange Offers. If a publicly-announced tender or exchange offer made by the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer for the Common SharesStock (other than a Reorganization) shall be consummated, to the extent that the cash and value Fair Market Value of any other consideration (as determined by the Board of Directors of the Company acting in good faith and in a commercially reasonable manner) included in the payment per share of the Common Shares Stock exceeds the Quoted Price on average of the Fair Market Values of one share of Common Stock over the 10 consecutive Trading Day next succeeding period ending on, and including, the last tenth Trading Day immediately following the date on which tenders or exchanges may be made pursuant to such tender or exchange offeroffer is consummated, then the Exercise Price in effect immediately prior and the Warrant Share Number shall be adjusted pursuant to the formulas below; provided that the Exercise Price shall not be increased (and Warrant Share Number shall not be decreased) as a result of this Section 13(E). Such adjustments shall be determined at the close of business on the tenth Trading Day next succeeding immediately following the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer is consummated, but shall be decreased by multiplying such Exercise Price by a fraction (not to be greater than 1): (i) the numerator become effective as of which shall be the product of (x) the number of Common Shares outstanding immediately prior to the date such tender or exchange offer expires (prior to giving effect to the purchase of all Common Shares accepted for purchase or exchange in such tender or exchange offer) and (y) the Quoted Price on the Trading Day next succeeding the date which such tender or exchange offer expires; and (ii) . Where: Ub = Warrant Share Number before the denominator adjustment Ua = Warrant Share Number after the adjustment Pb = Exercise Price before the adjustment Pa = Exercise Price after the adjustment M = Average of the Fair Market Values of one share of Common Stock over the 10 consecutive Trading Day period ending on, and including, the tenth Trading Day immediately following the date on which shall be the sum of (x) aggregate value such tender or exchange offer is consummated E = Aggregate Fair Market Value of all cash and any other consideration (as determined by the Board of Directors of the Company in good faith and in a commercially reasonable manner) paid or payable for shares of Common Shares purchased Stock in such tender or exchange offer and (y) Ob = Number of shares of Common Stock outstanding immediately before giving effect to such tender or exchange offer Oa = Number of shares of Common Stock outstanding immediately after giving effect to such tender or exchange offer If the product Determination Date for any exercise of (A) the Quoted Price Warrants occurs on the Trading Day next succeeding or after the date on which such tender or exchange offer expires and (B) prior to the number of Common Shares outstanding tenth Trading Day immediately after following the date on which such tender or exchange offer expires (after giving effect is consummated, references in this Section 13(E) to “tenth Trading Day immediately following the purchase of all Common Shares accepted for purchase or exchange in date on which such tender or exchange offer). Any adjustment under offer is consummated” shall be deemed replaced by references to such Determination Date and references in this Section 5.1(e13(E) shall, subject to Section 5.1(f)(iv), become effective immediately prior to “10” shall be deemed replaced with such lesser number of Trading Days as have elapsed between the opening of business on the day after the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offeroffer is consummated and such Determination Date, in each case, in determining the Exercise Price and Warrant Share Number.

Tender and Exchange Offers. If In the Company case that a tender offer or exchange offer made by us or any subsidiary for all or any portion of its Subsidiaries makes a payment in respect of a our common stock shall expire and such tender or exchange offer for the Common Shares, to the extent that the cash and value of any other consideration (as determined by amended through the Board of Directors expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of the Company acting in good faith and in tender offer or exchange offer) of purchased shares) of an aggregate consideration having a commercially reasonable manner) included in the payment fair market value per share of the Common Shares our common stock that exceeds the Quoted Price VWAP on the Trading Day trading day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer, then, immediately prior to the Exercise Price in effect opening of business on the second business day after the date of the last time (which we refer to as the “expiration time”) tenders or exchanges could have been made pursuant to such tender offer or exchange offer (as amended through the expiration thereof), each fixed settlement rate shall be increased by dividing: · each fixed settlement rate immediately prior to the close of business on the Trading Day next succeeding date of the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer shall be decreased expiration time by multiplying such Exercise Price by · a fraction (not to be greater than 1): (iA) the numerator of which shall be equal to (x) the product of (i) the current market price on the date of the expiration time and (ii) the number of shares of common stock outstanding (including any tendered or exchanged shares) on the date of the expiration time less (y) the amount of cash consideration plus the fair market value of the aggregate non-cash consideration payable to stockholders pursuant to the tender offer or exchange offer (assuming the acceptance, up to any maximum specified in the terms of the tender offer or exchange offer, of purchased shares), and (B) the denominator of which shall be equal to the product of (x) the number of Common Shares outstanding immediately prior to current market price on the date such tender or exchange offer expires (prior to giving effect to of the purchase of all Common Shares accepted for purchase or exchange in such tender or exchange offer) expiration time and (y) the Quoted Price result of (i) the number of shares of our common stock outstanding (including any tendered or exchanged shares) on the Trading Day next succeeding date of the date such tender or exchange offer expires; and expiration time less (ii) the denominator number of all shares validly tendered, not withdrawn and accepted for payment on the date of the expiration time (such validly tendered or exchanged shares, up to any such maximum, being referred to as the “purchased shares”). The “current market price” per share of our common stock or any other security on any day means the average VWAP for the 20 consecutive trading days preceding the earlier of the day preceding the day in question and the day before the “ex date” with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term “ex date,” when used with respect to any issuance or distribution, means the first date on which our common stock or such other security, as applicable, trades, regular way, on the principal U.S. securities exchange or quotation system on which our common stock or such other security, as applicable, is listed or quoted at that time, without the right to receive the issuance or distribution. Reorganization Events. The following events are defined as “reorganization events”: · any consolidation or merger of Xxxxxx Xxxxxxx with or into another person or of another person with or into Xxxxxx Xxxxxxx; or · any sale, transfer, lease or conveyance to another person of the property of Xxxxxx Xxxxxxx as an entirety or substantially as an entirety; or · any statutory share exchange of Xxxxxx Xxxxxxx with another person (other than in connection with a merger or acquisition); or · any liquidation, dissolution or termination of Xxxxxx Xxxxxxx in each case in which holders of our common stock would be entitled to receive cash, securities or other property for their shares of common stock. Upon a reorganization event, each stock purchase contract shall thereafter, in lieu of a variable number of shares of our common stock, be settled by delivery of exchange property units. An “exchange property unit” represents the right to receive the kind and amount of securities, cash and other property receivable in such reorganization event (without any interest thereon, and without any right to dividends or distribution thereon which have a record date that is prior to the applicable settlement date) per share of our common stock by a holder of common stock that is not a person with which we are consolidated or into which we are merged or which merged into us or to which such sale or transfer was made, as the case may be (we refer to any such person as a “constituent person”), or an affiliate of a constituent person to the extent such reorganization event provides for different treatment of common stock held by our affiliates and non-affiliates. In the event all holders of our common stock (other than any constitutent person and affiliates thereof) do not receive the same form of consideration to be received in such transaction, the exchange property unit that holders of the Corporate Units or Treasury Units will be entitled to receive will be deemed to be the weighted average of the types and amounts of consideration received by the holders of our common stock that affirmatively make an election (or of all such holders if none make an election). In the event of such a reorganization event, the person formed by such consolidation, or merger or the person which acquires our assets shall execute and deliver to the transfer agent an agreement providing that the holder of each PEPS Unit that remains outstanding after the reorganization event (if any) shall have the rights described in the preceding paragraph. Such supplemental agreement shall provide for adjustments to the amount of any securities constituting all or a portion of an exchange property unit which, for events subsequent to the effective date of such reorganization event, shall be as nearly equivalent as may be practicable to the sum adjustments provided for in this “—Anti-dilution Adjustments” section. The provisions described in the preceding two paragraphs shall similarly apply to successive reorganization events. Holders have the right to settle their obligations under the PEPS Units early in the event of certain cash mergers as described above under “—Early Settlement Upon Cash Merger.” You may be treated as receiving a constructive distribution from us with respect to the stock purchase contract if under applicable Treasury regulations (x1) aggregate the settlement rate is adjusted (or fails to be adjusted) and, as a result of the adjustment (or failure to adjust), your proportionate interest in our assets or earnings and profits is increased, and (2) the adjustment (or failure to adjust) is not made pursuant to a bona fide, reasonable anti-dilution formula. Thus, under certain circumstances, an increase in (or a failure to decrease) the settlement rate might give rise to a taxable dividend to you even though you will not receive any cash in connection with the increase in (or failure to decrease) the settlement rate. In addition, non-U.S. holders of PEPS Units may, in certain circumstances, be deemed to have received a distribution subject to U.S. federal withholding tax. In addition, we may increase the settlement rate if our board of directors deems it advisable to avoid or diminish any income tax to holders of our common stock resulting from any dividend or distribution of shares (or rights to acquire shares) or from any event treated as a dividend or distribution for income tax purposes or for any other reasons. Adjustments to the settlement rate will be calculated to the nearest 1/10,000th of a share. No adjustment in the settlement rate will be required unless the adjustment would require an increase or decrease of at least one percent in the settlement rate. If any adjustment is not required to be made because it would not change the settlement rate by at least one percent, then the adjustment will be carried forward and taken into account in any subsequent adjustment, provided that effect shall be given to anti-dilution adjustments not later than the stock purchase date for a PEPS Unit. No adjustment to the settlement rate need be made if holders may participate in the transaction that would otherwise give rise to an adjustment, so long as the distributed assets or securities the holders would receive upon settlement of the PEPS Units, if convertible, exchangeable, or exercisable, are convertible, exchangeable or exercisable, as applicable, without any loss of rights or privileges for a period of at least 60 days following settlement of the PEPS Units. The fixed settlement rates will not be adjusted: · upon the issuance of any shares of our common stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on our securities and the investment of additional optional amounts in shares of our common stock under any plan; · upon the issuance of any shares of our common stock or options or rights to purchase those shares pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by us or any of our subsidiaries; · upon the issuance of any shares of our common stock pursuant to any option, warrant, right or exercisable, exchangeable or convertible security outstanding as of the date the PEPS Units were first issued; · for a change in the par value or no par value of all cash the common stock; or · for accumulated and any other consideration (unpaid dividends. We will be required, as determined by soon as practicable after the Board of Directors settlement rate is adjusted, to provide written notice of the Company adjustment to the holders of PEPS Units. If an adjustment is made to each fixed settlement rate pursuant to paragraphs (1) through (6) of this “— Anti-dilution Adjustments” section, a corresponding adjustment also will be made to the applicable market value solely to determine which of the clauses of the definition of settlement rate will be applicable on the stock purchase date or any cash merger early settlement date, but there will be no adjustment to the applicable market value as such term is used as the denominator in good faith and the fraction described in clause (2) of the definition of settlement rate set forth in “— Purchase of Common Stock,” provided that if an event requiring an adjustment occurs on any trading day during the observation period, the VWAP calculated for each trading day before the event requiring an adjustment occurs will be adjusted in a commercially reasonable manner) paid or payable for Common Shares purchased in such tender or exchange offer and (y) the product of (A) the Quoted Price on the Trading Day next succeeding the date such tender or exchange offer expires and (B) the number of Common Shares outstanding immediately after the date such tender or exchange offer expires (after giving effect manner inversely proportional to the adjustment to the fixed settlement rates. To the extent that we have a rights plan in effect upon a settlement of a purchase contract, you will receive, in addition to our common stock, the rights under the rights plan, unless, prior to the settlement of a purchase contract, the rights have separated from the common stock, in which case each fixed settlement rate will be adjusted at the time of separation as if we made a distribution to all Common Shares accepted for purchase or exchange holders of our common stock as described in such tender or exchange offer). Any adjustment under this Section 5.1(eclause (4) shallabove, subject to Section 5.1(f)(iv)readjustment in the event of the expiration, become effective immediately prior to the opening termination or redemption of business on the day after the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offerrights.

Tender and Exchange Offers. If the Company Corporation or any of its Subsidiaries makes make a payment in respect of a tender or exchange offer for the Common SharesStock (other than solely pursuant to an odd-lot tender offer pursuant to Rule 13e-4(h)(5) under the Exchange Act (or any successor rule)), to the extent that the cash and value of any other consideration (as determined by the Board of Directors of the Company acting in good faith and in a commercially reasonable manner) included in the payment per share of the Common Shares Stock (determined as of the expiration time of such offer by the Corporation in good faith) exceeds the Quoted Closing Price on per share of the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Exercise Price in effect immediately prior to the close of business Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended), then the Conversion Price shall be decreased by multiplying such Exercise based on the following formula: where, = the Conversion Price by a fraction (not to be greater than 1): (i) the numerator of which shall be the product of (x) the number of Common Shares outstanding in effect immediately prior to the date such tender or exchange offer expires (prior to giving effect to close of business on the purchase of all Common Shares accepted for purchase or exchange in such tender or exchange offer) 10th Trading Day immediately following, and (y) the Quoted Price on including, the Trading Day next succeeding the date such tender or exchange offer expires; and (ii) = the denominator Conversion Price in effect immediately after the close of which shall be business on the sum of (x) aggregate value of all cash 10th Trading Day immediately following, and any other consideration (as determined by the Board of Directors of the Company in good faith and in a commercially reasonable manner) paid or payable for Common Shares purchased in such tender or exchange offer and (y) the product of (A) the Quoted Price on including, the Trading Day next succeeding the date such tender or exchange offer expires expires; AC = the aggregate value, as of the time such tender or exchange offer expires, of all cash and other consideration paid for shares of Common Stock purchased or exchanged in such tender or exchange offer (B) such aggregate value to be determined, other than with respect to cash, by the Corporation in good faith); = the number of shares of Common Shares Stock outstanding immediately after prior to the date time such tender or exchange offer expires (after giving effect to the purchase including all shares of all Common Shares Stock accepted for purchase or exchange in such tender or exchange offer). Any adjustment under this Section 5.1(e) shall; = the number of shares of Common Stock outstanding immediately after the time such tender or exchange offer expires (excluding all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); and = the arithmetic average of the Daily VWAPs of the Common Stock over the 10 consecutive Trading Day period commencing on, subject to Section 5.1(f)(iv)and including, become effective immediately prior to the opening of business on the day after the Trading Day next succeeding the last date such tender or exchange offer expires. The decrease to the Conversion Price under this Section 7.7(e) shall occur at the close of business on which tenders the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires; provided that in respect of any conversion of Series B Convertible Preferred Stock, if the relevant Conversion Date occurs during the 10 Trading Days immediately following, and including, the Trading Day next succeeding the expiration date of any tender or exchange offer, references to “10” or “10th” in the preceding paragraph shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding the date that such tender or exchange offer expires to, and including, the Conversion Date in determining the Conversion Price for such conversion. To the extent such tender or exchange offer is announced but not consummated (including as a result of being precluded from consummating such tender or exchange offer under applicable law), or any purchases or exchanges may of shares of Common Stock in such tender or exchange offer are rescinded, the Conversion Price will be readjusted to the Conversion Price that would then be in effect had the adjustment been made pursuant to on the basis of only the purchases or exchanges of shares of Common Stock, if any, actually made, and not rescinded, in such tender or exchange offer.

Tender and Exchange Offers. If a publicly-announced tender or exchange offer, or other repurchase offer made by the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer Affiliates for the Common SharesStock (other than a Reorganization) shall be consummated, to the extent that the cash and value Fair Market Value of any other consideration (as determined by the Board of Directors of the Company acting in good faith and in a commercially reasonable manner) included in the payment per share of Common Stock exceeds the average of the Fair Market Values of the Common Shares exceeds Stock over the Quoted Price on the ten (10) consecutive Trading Day next succeeding period ending on, and including, the last tenth (10th) Trading Day immediately following the date on which tenders or exchanges may be made pursuant to such tender or exchange offeroffer is consummated, then the Exercise Price in effect immediately prior and the Warrant Share Number shall be adjusted pursuant to the formulas below; provided that the Exercise Price shall not be increased (and Warrant Share Number shall not be decreased) as a result of this Section 4.01(e). Such adjustments shall be determined at the close of business on the tenth (10th) Trading Day next succeeding immediately following the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer is consummated, but shall be decreased by multiplying such Exercise Price by a fraction (not to be greater than 1): (i) the numerator become effective as of which shall be the product of (x) the number of Common Shares outstanding immediately prior to the date such tender or exchange offer expires (prior to giving effect to the purchase of all Common Shares accepted for purchase or exchange in such tender or exchange offer) and (y) the Quoted Price on the Trading Day next succeeding the date which such tender or exchange offer expires; and . Na = Nb x (iiOa x M) + C Ob x M Ea = Eb x Ob x M (Oa x M) + C Where: Nb = Warrant Share Number before the denominator adjustment Na = Warrant Share Number after the adjustment Eb = Exercise Price before the adjustment Ea = Exercise Price after the adjustment M = Average of the Fair Market Values of one share of Common Stock over the ten (10) consecutive Trading Day period ending on, and including, the tenth (10th) Trading Day immediately following the date on which shall be the sum of (x) aggregate value such tender or exchange offer is consummated C = Aggregate Fair Market Value of all cash and any other consideration (as determined by the Board of Directors of the Company in good faith and in a commercially reasonable manner) paid or payable for shares of Common Shares purchased Stock in such tender or exchange offer and (y) Ob = Number of shares of Common Stock outstanding immediately before giving effect to such tender or exchange offer Oa = Number of shares of Common Stock outstanding immediately after giving effect to such tender or exchange offer. If the product Exercise Date for any exercise of (A) the Quoted Price Warrants occurs on the Trading Day next succeeding or after the date on which such tender or exchange offer expires and prior to the tenth (B10th) the number of Common Shares outstanding Trading Day immediately after following the date on which such tender or exchange offer expires is consummated, references in this Section 4.01(e) to “tenth (after giving effect to 10th) Trading Day immediately following the purchase of all Common Shares accepted for purchase or exchange in date on which such tender or exchange offer). Any adjustment under offer is consummated” shall be deemed replaced by references to such Exercise Date and references in this Section 5.1(e4.01(e) shall, subject to Section 5.1(f)(iv“ten (10), become effective immediately prior to ” shall be deemed replaced with such lesser number of Trading Days as have elapsed between the opening of business on the day after the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offeroffer is consummated and such Exercise Date, in each case, in determining the Exercise Price and Warrant Share Number.

Tender and Exchange Offers. If a publicly-announced tender or exchange offer, or other repurchase offer made by the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer Affiliates for the Common SharesShares (other than a Reorganization) shall be consummated, to the extent that the cash and value Fair Market Value of any other consideration (as determined by the Board of Directors of the Company acting in good faith and in a commercially reasonable manner) included in the payment per share Common Share exceeds the average of the Fair Market Values of the Common Shares exceeds over the Quoted Price on the ten (10) consecutive Trading Day next succeeding period ending on, and including, the last tenth (10th) Trading Day immediately following the date on which tenders or exchanges may be made pursuant to such tender or exchange offeroffer is consummated, then the Exercise Price in effect immediately prior Warrant Share Number shall be adjusted pursuant to the formula below; provided that the Warrant Share Number shall not be decreased as a result of this Section 4.01(d). Such adjustment shall be determined at the close of business on the tenth (10th) Trading Day next succeeding immediately following the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer is consummated, but shall be decreased by multiplying such Exercise Price by a fraction (not to be greater than 1): (i) the numerator become effective as of which shall be the product of (x) the number of Common Shares outstanding immediately prior to the date such tender or exchange offer expires (prior to giving effect to the purchase of all Common Shares accepted for purchase or exchange in such tender or exchange offer) and (y) the Quoted Price on the Trading Day next succeeding the date which such tender or exchange offer expires; and . Na = Nb x (iiOa x M) + C / Ob x M Where: Nb = Warrant Share Number before the denominator adjustment Na = Warrant Share Number after the adjustment M = Average of the Fair Market Values of one Common Share over the ten (10) consecutive Trading Day period ending on, and including, the tenth (10th) Trading Day immediately following the date on which shall be the sum of (x) aggregate value such tender or exchange offer is consummated C = Aggregate Fair Market Value of all cash and any other consideration (as determined by the Board of Directors of the Company in good faith and in a commercially reasonable manner) paid or payable for Common Shares purchased in such tender or exchange offer and (y) Ob = Number of Common Shares outstanding immediately before giving effect to such tender or exchange offer Oa = Number of Common Shares outstanding immediately after giving effect to such tender or exchange offer. If the product Exercise Date for any exercise of (A) the Quoted Price Warrants occurs on the Trading Day next succeeding or after the date on which such tender or exchange offer expires and prior to the tenth (B10th) the number of Common Shares outstanding Trading Day immediately after following the date on which such tender or exchange offer expires is consummated, references in this Section 4.01(d) to “tenth (after giving effect to 10th) Trading Day immediately following the purchase of all Common Shares accepted for purchase or exchange in date on which such tender or exchange offer). Any adjustment under offer is consummated” shall be deemed replaced by references to such Exercise Date and references in this Section 5.1(e4.01(d) shall, subject to Section 5.1(f)(iv“ten (10), become effective immediately prior to ” shall be deemed replaced with such lesser number of Trading Days as have elapsed between the opening of business on the day after the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offeroffer is consummated and such Exercise Date, in each case, in determining the Warrant Share Number.

Tender and Exchange Offers. If a publicly-announced tender or exchange offer made by the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer subsidiaries for the Common SharesStock shall be consummated, to the extent that the cash and value of any other consideration (as determined by the Board of Directors of the Company acting in good faith and in a commercially reasonable manner) included in the payment per share of the Common Shares Stock exceeds the Quoted Market Price on of one share of Common Stock as of the eleventh Trading Day next succeeding immediately following the last date on which tenders or exchanges may be made pursuant to such tender or exchange offeroffer expires, then the Exercise Price in effect immediately prior number of shares of Common Stock issuable for each Warrant shall be adjusted pursuant to the formula below; provided that the number of shares of Common Stock issuable for each Warrant shall not be decreased as a result of this Section 6(d). Such increase shall be determined at the close of business on the tenth Trading Day next succeeding immediately following the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer expires, but shall be decreased by multiplying become effective as of the date on which such Exercise Price by a fraction (not to be greater than 1): (i) the numerator of which shall be the product of (x) the tender or exchange offer expires. Where: Ub = The number of shares of Common Shares Stock issuable for each Warrant before the adjustment Ua = The number of shares of Common Stock issuable for each Warrant after the adjustment M = The Market Price of one share of Common Stock as of the eleventh Trading Day immediately following the date on which such tender or exchange offer expires E = The aggregate value of all cash and any other consideration (as determined by the Board) paid or payable for shares of Common Stock purchased in such tender or exchange offer Ob = The number of shares of Common Stock outstanding immediately prior to the date such tender or exchange offer expires (prior to giving effect to the purchase of all shares of Common Shares Stock accepted for purchase or exchange in such tender or exchange offer) and (y) the Quoted Price on the Trading Day next succeeding the date such tender or exchange offer expires; and (ii) the denominator of which shall be the sum of (x) aggregate value of all cash and any other consideration (as determined by the Board of Directors of the Company in good faith and in a commercially reasonable manner) paid or payable for Common Shares purchased in such tender or exchange offer and (y) the product of (A) the Quoted Price on the Trading Day next succeeding the date such tender or exchange offer expires and (B) the Oa = The number of shares of Common Shares Stock outstanding immediately after the date such tender or exchange offer expires (after giving effect to the purchase of all shares of Common Shares Stock accepted for purchase or exchange in such tender or exchange offer). Any adjustment under this Section 5.1(e) shall, subject to Section 5.1(f)(iv), become effective immediately If a Warrant Exercise Notice is delivered after the date on which such tender or exchange offer expires and prior to the opening of business tenth Trading Day immediately following the date on which such tender or exchange offer expires, references in this Section 6(d) to “eleventh Trading Day immediately following the date on which such tender or exchange offer expires” shall be deemed replaced by references to the day after following such date of delivery and references in the definition of Market Price for purposes of this Section 6(d) to “ten (10)” shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offeroffer expires and such date of delivery, in each case, in determining the number of shares of Common Stock issuable for such Warrant.

Tender and Exchange Offers. If the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer for the Common Shares, to the extent that the cash and value of any other consideration (as determined by the Board of Directors of the Company acting in good faith and in a commercially reasonable manner) included in the payment per share Common Share exceeds the average of the Last Reported Sale Prices of the Common Shares exceeds over the Quoted Price on 10 consecutive Trading Day period (the “TO Valuation Period”) commencing on, and including, the Trading 1006107100v8 Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Exercise Target Price shall be decreased based on the following formula: TP1 = TP0 × OS0 × SP1AC + (SP1 × OS1) where, TP0 = the Target Price in effect immediately prior to the close open of business on the first Trading Day next succeeding of the last date TO Valuation Period; TP1 = the Target Price in effect immediately after the open of business on which tenders the first Trading Day of the TO Valuation Period; AC = the aggregate value of all cash and any other consideration (as determined by the Board of Directors in good faith and in a commercially reasonable manner) paid or exchanges may be made pursuant to payable for Common Shares purchased in such tender or exchange offer shall be decreased by multiplying such Exercise Price by a fraction (not to be greater than 1): (i) the numerator of which shall be the product of (x) offer; OS0 = the number of Common Shares outstanding immediately prior to the date such tender or exchange offer expires (prior to giving effect to the purchase of all Common Shares accepted for purchase or exchange in such tender or exchange offer) and (y) the Quoted Price on the Trading Day next succeeding the date such tender or exchange offer expires); and (ii) the denominator of which shall be the sum of (x) aggregate value of all cash and any other consideration (as determined by the Board of Directors of the Company in good faith and in a commercially reasonable manner) paid or payable for Common Shares purchased in such tender or exchange offer and (y) the product of (A) the Quoted Price on the Trading Day next succeeding the date such tender or exchange offer expires and (B) OS1 = the number of Common Shares outstanding immediately after the date such tender or exchange offer expires (after giving effect to the purchase of all Common Shares accepted for purchase or exchange in such tender or exchange offer); and SP1 = the average of the Last Reported Sale Prices over the TO Valuation Period. Any The adjustment to the Target Price under this Section 5.1(e4(e) shall, subject to Section 5.1(f)(iv), become effective immediately prior to shall occur at the opening close of business on the last day after of the TO Valuation Period; provided that if the Outside Date occurs during the TO Valuation Period, for the purposes of determining the Target Price, a reference to “10” in this Section 4(e) shall be deemed replaced with such lesser number of Trading Day next succeeding Days as have elapsed from, and including, the last date on which tenders first day of the TO Valuation Period to, and including, the Outside Date. To the extent such tender or exchange offer is announced but not consummated (including as a result of being precluded from consummating such tender or exchange offer under applicable law), or any purchases or exchanges may of Common Shares in such tender or exchange offer are rescinded, the Target Price will be readjusted to the Target Price that would then be in effect had the adjustment been made pursuant to on the basis of only the purchases or exchanges of Common Shares, if any, actually made, and not rescinded, in such tender or exchange offer.