Common use of Distributions Clause in Contracts

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case If, at any time after the Issue Date, the Company declares or makes any distribution of cash or any other assets (or rights to acquire such assets) to holders of Common Stock, including without limitation any dividend or distribution to the Company’s stockholders in shares (or rights to acquire shares) of capital stock of a subsidiary) (a “Distribution”), the Company shall fix deliver written notice of such Distribution (a “Distribution Notice”) to the Holder at least fifteen (15) days prior to the earlier to occur of (i) the record date for determining stockholders entitled to such Distribution (the making “Record Date”) and (ii) the date on which such Distribution is made (the “Distribution Date”)(the earlier of such dates being referred to as the “Determination Date”). Upon receipt of the Distribution Notice, the Holder shall promptly (but in no event later than three (3) Business Days) notify the Company whether it has elected (A) to receive the same amount and type of assets (including, without limitation, cash) being distributed as though the Holder were, on the Determination Date, a holder of a distribution to all holders number of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in shares of Common Stock into which the Company this Warrant is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment exercisable as of such dividend, Determination Date (such number of shares to be determined without giving effect to any limitations on such exercise) or a dividend payable in Preferred Shares (which dividend, for purposes B) upon any exercise of this AgreementWarrant on or after the Distribution Date, shall be subject to reduce the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred Exercise Price applicable to in Section 11.2), such exercise by reducing the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Exercise Price in effect on the Business Day immediately prior preceding the Record Date by an amount equal to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (of the assets to be distributed divided by the number of shares of Common Stock as to which such Distribution is to be made, such fair market value to be reasonably determined in good faith by the Board of Directors independent members of the Company’s Board of Directors. Upon receipt of such election notice from the Holder, whose determination the Company shall timely effectuate the transaction or adjustment contemplated in the foregoing clause (A) or (B), as applicable. If the Holder does not notify the Company of its election pursuant to the preceding sentence on or prior to the Determination Date, the Holder shall be described in a statement filed with the Rights Agentdeemed to have elected clause (A) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixedpreceding sentence.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDEDprovided, HOWEVERhowever, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case If the Company shall fix Company, at any time after the Rights Dividend Declaration Date, fixes a record date for the making of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a share exchange, consolidation or merger in which the Company is the continuing or surviving corporation) of evidences cash (other than a periodic cash dividend out of indebtednessthe earnings or retained earnings of the Company), cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividendShares, for purposes but including any dividend payable in stock other than Preferred Shares), evidences of this Agreementindebtedness, shall be subject to the provisions of Section 11.1.1(A))) or convertible securitiessubscription rights, or subscription rights options or warrants (excluding those referred to in Section 11.211(b)), then, in each such case, the Purchase Exercise Price to be in effect after such record date shall will be determined by multiplying the Purchase Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall will be the current per share market price Current Per Share Market Price of the a Preferred Shares (as determined pursuant to Section 11.4) Share on such record date, less the fair market value per Preferred Share (as determined in good faith by the Board of Directors of the CompanyBoard, whose determination shall will be described in a statement filed with the Rights AgentAgent and will be conclusive and binding on the Rights Agent and the holders of the Rights) of the portion of the cash, assets, securities assets or evidences of indebtedness so to be so distributed or of such subscription rights rights, options or warrants applicable to one Preferred Share Share, and the denominator of which shall be such current per share market price Current Per Share Market Price of the a Preferred Shares (as determined pursuant to Section 11.4)Share on such record date; PROVIDEDprovided, HOWEVERhowever, that in no event shall will the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued issuable upon the exercise of one Right. Such adjustments shall adjustment will be made successively whenever such a record date is fixed; , and in the event that such distribution is not so made, then the Purchase Exercise Price shall again will be adjusted to be the Purchase Exercise Price which that would then be have been in effect if such record date had not been fixed.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Series A Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Series A Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the then current per share market price of the Series A Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the CompanyBoard, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one share of Series A Preferred Share and the denominator of which shall be such current per share market price of the Series A Preferred Shares (as determined pursuant to Section 11.4); PROVIDEDprovided, HOWEVERhowever, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which that would then be in effect if such record date had not been fixed.

Distributions. In case If, at any time after the Issue Date, the Company declares or makes any distribution of cash or any other assets (or rights to acquire such assets) to holders of Common Stock, as a partial liquidating dividend or otherwise, including without limitation any dividend or distribution to the Company’s shareholders in shares (or rights to acquire shares) of capital stock of a subsidiary) (a “Distribution”), the Company shall fix deliver written notice of such Distribution (a “Distribution Notice”) to the Holder at least thirty (30) days prior to the earlier to occur of (i) the record date for determining shareholders entitled to such Distribution (the making “Record Date”) and (ii) the date on which such Distribution is made (the “Distribution Date”) (the earlier of such dates being referred to as the “Determination Date”). In the Distribution Notice to a Holder, the Company shall indicate whether the Company has elected (A) to deliver to such Holder, upon any exercise of this Warrant after the Determination Date, the same amount and type of assets being distributed in such Distribution as though the Holder were, on the Determination Date, a holder of a distribution to all holders number of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in shares of Common Stock into which the Company this Warrant is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment exercisable as of such dividend, Determination Date (such number of shares to be determined at the Exercise Price then in effect and without giving effect to any limitations on such exercise) or a dividend payable in Preferred Shares (which dividend, for purposes B) upon any exercise of this AgreementWarrant on or after the Determination Date, shall be subject to reduce the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred Exercise Price applicable to in Section 11.2), such exercise by reducing the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Exercise Price in effect on the Business Day immediately prior preceding the Record Date by an amount equal to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (of the assets to be distributed divided by the number of shares of Common Stock as to which such Distribution is to be made, such fair market value to be reasonably determined in good faith by the Company’s Board of Directors Directors. If the Company does not notify the Holders of its election pursuant to the Companypreceding sentence on or prior to the Determination Date, whose determination the Company shall be described in a statement filed with the Rights Agentdeemed to have elected clause (A) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixedpreceding sentence.

Distributions. In case If, at any time after the Issue Date, the Company declares or makes any distribution of cash or any other assets (or rights to acquire such assets) to holders of Common Stock, as a partial liquidating dividend or otherwise, including without limitation any dividend or distribution to the Company’s shareholders in shares (or rights to acquire shares) of capital stock of a subsidiary) (a “Distribution”), the Company shall fix deliver written notice of such Distribution (a “Distribution Notice”) to the Holder at least thirty (30) days prior to the earlier to occur of (i) the record date for determining shareholders entitled to such Distribution (the making “Record Date”) and (ii) the date on which such Distribution is made (the “Distribution Date”) (the earlier of such dates being referred to as the “Determination Date”). In the Distribution Notice to the Holder, the Company shall indicate whether the Company has elected (A) to deliver to the Holder, upon any exercise of this Warrant after the Determination Date, the same amount and type of assets being distributed in such Distribution as though the Holder were, on the Determination Date, a holder of a distribution to all holders number of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in shares of Common Stock into which the Company this Warrant is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment exercisable as of such dividend, Determination Date (such number of shares to be determined at the Exercise Price then in effect and without giving effect to any limitations on such exercise) or a dividend payable in Preferred Shares (which dividend, for purposes B) upon any exercise of this AgreementWarrant on or after the Determination Date, shall be subject to reduce the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred Exercise Price applicable to in Section 11.2), such exercise by reducing the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Exercise Price in effect on the Business Day immediately prior preceding the Record Date by an amount equal to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (of the assets to be distributed divided by the number of shares of Common Stock as to which such Distribution is to be made, such fair market value to be reasonably determined in good faith by the Company’s Board of Directors Directors. If the Company does not notify the Holder of its election pursuant to the Companypreceding sentence on or prior to the Determination Date, whose determination the Company shall be described in a statement filed with the Rights Agentdeemed to have elected clause (A) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixedpreceding sentence.

Distributions. In case If the Company shall fix Company, at any time after the Rights Dividend Declaration Date, fixes a record date for the making of a distribution to all holders of the shares of Preferred Shares Stock (including any such distribution made in connection with a share exchange, consolidation or merger in which the Company is the continuing or surviving corporation) of evidences cash (other than a periodic cash dividend out of indebtednessthe earnings or retained earnings of the Company), cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in shares of Preferred Shares (which dividendStock, for purposes but including any dividend payable in stock other than Preferred Stock), evidences of this Agreementindebtedness, shall be subject to the provisions of Section 11.1.1(A))) or convertible securitiessubscription rights, or subscription rights options or warrants (excluding those referred to in Section 11.211(b)), then, in each such case, the Purchase Exercise Price to be in effect after such record date shall will be determined by multiplying the Purchase Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall will be the current per Current Per Share Market Price of a share market price of the Preferred Shares (as determined pursuant to Section 11.4) Stock on such record date, less the fair market value per share of Preferred Stock (as determined in good faith by the Board of Directors of the CompanyBoard, whose determination shall will be described in a statement filed with the Rights AgentAgent and will be conclusive and binding on the Rights Agent and the holders of the Rights) of the portion of the cash, assets, securities assets or evidences of indebtedness so to be so distributed or of such subscription rights rights, options or warrants applicable to one share of Preferred Share Stock, and the denominator of which shall will be the Current Per Share Market Price of a share of Preferred Stock on such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDEDrecord date, HOWEVER, it being understood that in no event shall will the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued issuable upon the exercise of one Right. Such adjustments shall adjustment will be made successively whenever such a record date is fixed; , and in the event that if such distribution is not so made, then the Purchase Exercise Price shall again will be adjusted to be the Purchase Exercise Price which that would then be have been in effect if such record date had not been fixed.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Preferred Shares Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares Stock (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares Stock (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the CompanyBoard, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one share of Preferred Share Stock and the denominator of which shall be such current per share market price of the Preferred Shares Stock (as determined pursuant to Section 11.4); PROVIDEDprovided, HOWEVERhowever, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Preferred Shares Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares Stock (which dividend, for purposes of this AgreementPlan, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares Stock (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the CompanyBoard, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one share of Preferred Share Stock and the denominator of which shall be such current per share market price of the Preferred Shares Stock (as determined pursuant to Section 11.4); PROVIDEDprovided, HOWEVERhowever, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A)) hereof)) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to defined in Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one RightShares. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case If, at any time after the Issue Date, the Company declares or makes any distribution of cash or any other assets (or rights to acquire such assets) to holders of Common Stock, including without limitation any dividend or distribution to the Company’s stockholders in shares (or rights to acquire shares) of capital stock of a subsidiary) (a “Distribution”), the Company shall fix deliver written notice of such Distribution (a “Distribution Notice”) to the Holder at least fifteen (15) days prior to the earlier to occur of (i) the record date for determining stockholders entitled to such Distribution (the making “Record Date”) and (ii) the date on which such Distribution is made (the “Distribution Date”)(the earlier of such dates being referred to as the “Determination Date”). Upon receipt of the Distribution Notice, the Holder shall promptly (but in no event later than three (3) Business Days) notify the Company whether it has elected (A) to receive the same amount and type of assets (including, without limitation, cash) being distributed as though the Holder were, on the Determination Date, a holder of a distribution to all holders number of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in shares of Common Stock into which the Company this Note is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment convertible as of such dividend, Determination Date (such number of shares to be determined without giving effect to any limitations on such conversion) or a dividend payable in Preferred Shares (which dividend, for purposes B) upon any exercise of this AgreementNote on or after the Distribution Date, shall be subject to reduce the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred Conversion Price applicable to in Section 11.2), such conversion by reducing the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Conversion Price in effect on the Business Day immediately prior preceding the Record Date by an amount equal to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (of the assets to be distributed divided by the number of shares of Common Stock as to which such Distribution is to be made, such fair market value to be reasonably determined in good faith by the Board of Directors independent members of the Company’s Board of Directors. Upon receipt of such election notice from the Holder, whose determination the Company shall timely effectuate the transaction or adjustment contemplated in the foregoing clause (A) or (B), as applicable. If the Holder does not notify the Company of its election pursuant to the preceding sentence on or prior to the Determination Date, the Holder shall be described in a statement filed with the Rights Agentdeemed to have elected clause (A) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixedpreceding sentence.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Series A Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Series A Preferred Shares (which dividend, for purposes of this AgreementPlan, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the then current per share market price of the Series A Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the CompanyBoard, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one share of Series A Preferred Share and the denominator of which shall be such then-current per share market price of the Series A Preferred Shares (as determined pursuant to Section 11.4); PROVIDEDprovided, HOWEVERhowever, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which that would then be in effect if such record date had not been fixed.

Distributions. In case If, at any time this Warrant is outstanding, the Company shall fix fixes a record date for the making of a dividend or other distribution to all holders (by spin-off or otherwise) on shares of Class A Common Stock, whether in cash, Equity Interests of the Preferred Shares Company, other securities of the Corporation, evidences of indebtedness of the Company or any other Person or any other property (including Equity Interests, other securities or evidences of indebtedness of a Subsidiary), or any such distribution made combination thereof, excluding (i) dividends or distributions subject to adjustment pursuant to Section 3(a) or (ii) dividends or distributions of rights in connection with the adoption of a consolidation or merger stockholder rights plan in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets customary form (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior including with respect to the payment receipt of such dividendrights in respect of shares of Class A Common Stock (including Warrant Shares) issued subsequent to the initial dividend or distribution of such rights), or a dividend payable then in Preferred each such case, the number of Warrant Shares (which dividend, for purposes issuable upon exercise of this Agreement, Warrant in full shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined increased by multiplying the Purchase Price in effect immediately prior to such record date number of Warrant Shares by a fraction, the numerator of which shall be is the current VWAP per share market price of Class A Common Stock on such record date and the denominator of which is the VWAP per share of Class A Common Stock on such record date less the Fair Market Value of the Preferred cash and/or any other property, as applicable, to be so paid or distributed in such dividend or distribution in respect of one share of Class A Common Stock (in each case as of the record date of such dividend or distribution); such adjustment shall take effect on the record date for such dividend or distribution. In the event of such adjustment, the Exercise Price shall immediately be decreased or at such later date as the Board of Directors may determine for purposes of the determination of Fair Market Value (but in any event not later than 10 Business Days after the first date on which the Class A Common Stock trades regular way on the principal national securities exchange on which the Class A Common Stock is listed or admitted to trading without the right to receive such distribution) by multiplying such Exercise Price by a fraction, the numerator of which is the number of Warrant Shares issuable upon the exercise of this Warrant in full immediately prior to such adjustment, and the denominator of which is the new number of Warrant Shares issuable upon exercise of this Warrant determined in accordance with the immediately preceding sentence. Notwithstanding the foregoing, in the event that the Fair Market Value of the cash and/or any other property, as applicable, to be so paid or distributed in such dividend or distribution in respect of one share of Class A Common Stock (in each case as determined pursuant of the record date of such dividend or distribution) is equal to Section 11.4) or greater than the VWAP per share of Class A Common Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination then proper provision shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of made such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments this Warrant, the Holder shall be made successively whenever receive, in addition to the applicable Warrant Shares, the amount and kind of such a cash and/or any other property such Holder would have received had such Holder exercised this Warrant immediately prior to such record date is fixed; and (disregarding whether or not this Warrant had been exercisable by its terms at such time). For purposes of the foregoing, in the event that such dividend or distribution in question is ultimately not so made, the Purchase Exercise Price and the number of Warrant Shares issuable upon exercise of this Warrant then in effect shall again be adjusted readjusted, effective as of the date when the Board of Directors determines not to be make such dividend or distribution, to the Purchase Exercise Price which that would then be in effect and the number of Warrant Shares that would then be issuable upon exercise of this Warrant if such record date had not been fixed. For the avoidance of doubt, no increase to the Exercise Price or decrease in the number of Warrant Shares issuable upon exercise of this Warrant shall be made pursuant to this Section 3(c).

Distributions. In case If after the date hereof the Company shall fix a record date for the making of a distribution distribute to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) its shares of Common Stock evidences of indebtedness, cash, securities its indebtedness or assets (excluding cash distributions made as a dividend payable out of earnings or out of surplus legally available for dividends under the laws of the jurisdiction of incorporation of the Company) or rights to subscribe for shares of Common Stock expiring at least thirty (30) calendar days after the issuance thereof, other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those distribution referred to in Section 11.26(a) (which shall be governed solely by such Section), then in each such case (i) the Purchase Exercise Price to be in effect after such on the trading day immediately following the close of business on the record date for such distribution shall be decreased to an amount determined by multiplying the Purchase Exercise Price in effect immediately prior to such record date action by a fraction, fraction of which (x) the numerator is the Market Price of which shall be a share of the current Common Stock on the trading day immediately prior to the Ex-Date less the Market Price of the assets or evidences of indebtedness so distributed or of such subscription rights per share market price of Common Stock outstanding on the trading day immediately prior to the Ex-Date (determined for such purpose on the basis of the Preferred Shares aggregate assets, evidences of indebtedness and/or rights distributed with respect to one share of Common Stock as if, for purposes of the definition of “Market Price”, such assets, evidences of indebtedness and/or rights were an “Other Security” as defined herein) (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive, and described in a statement filed with the Rights Warrant Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and (y) the denominator is the Market Price of which shall be such current per a share market price of Common Stock on the Preferred trading day immediately prior to the Ex-Date and (ii) the number of Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid of Common Stock purchasable upon the exercise of one Right any Warrant after such event shall be less than the aggregate par value number of Shares of Common Stock obtained by multiplying the shares number of capital stock Shares of Common Stock purchasable immediately prior to such adjustment upon the Company to be issued upon exercise of one Rightsuch Warrant by the Exercise Price in effect immediately prior to such adjustment and dividing the product so obtained by the Exercise Price in effect after such adjustment. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that any such distribution is not so made, and shall become effective retroactively on the Purchase Price shall again be adjusted to be date immediately after the Purchase Price which would then be in effect if such record date had not been fixedfor the determination of stockholders entitled to receive such distribution.

Distributions. In case Neither the Company Borrower nor the Trust shall fix a record date make any Distributions which would cause it to violate any of the following covenants: (a) [Intentionally Deleted]; (b) The Borrower and the Trust shall not make any Distribution if such Distribution is in excess of the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the making four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of a distribution to all holders common equity or Preferred Equity of the Preferred Shares Borrower or the Trust and (including ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such distribution made repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement; (c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with a consolidation the repurchase of common or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital preferred stock of the Company to Trust at any time after an Event of Default shall have occurred and be issued upon exercise continuing; and (d) Notwithstanding the foregoing, at any time when an Event of one Right. Such adjustments Default shall be made successively whenever such a record date is fixed; have occurred and in the event that such distribution is not so madematurity of the Obligations has been accelerated, neither the Purchase Price Borrower nor the Trust shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixedmake any Distributions whatsoever, directly or indirectly.

Distributions. In case If at any time or from time to time the Company shall fix take a record date of the holders of its Ordinary Shares for the making purpose of a entitling them to receive or pays any dividend or other distribution to all holders of the Preferred Ordinary Shares (including collectively, a "Distribution") of: (i) cash, (ii) any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets its indebtedness (other than a regular periodic cash dividend at a rate not in excess securities convertible into Ordinary Shares ("Convertible Securities")), any shares of 125% its capital stock (other than additional Ordinary Shares or Convertible Securities) or any other securities or property of any nature whatsoever (other than cash), or (iii) any options or warrants or other rights to subscribe for or purchase any of the rate following: any evidences of its indebtedness (other than Convertible Securities), any shares of its capital stock (other than additional Ordinary Shares or Convertible Securities) or any other securities or property of any nature whatsoever, then the holder of this Warrant shall be entitled to receive upon the exercise hereof at any time on or after the taking of such record the number of Ordinary Shares to be received upon exercise of such Warrant determined as stated herein and, in addition and without further payment, the cash, stock, securities, other property, options, warrants and/or other rights to which such holder or holders would have been entitled by way of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash Distribution and subsequent dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of and distributions if such dividend, or a dividend payable in Preferred Shares Holder (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))x) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after had exercised such record date shall be determined by multiplying the Purchase Price in effect Warrants immediately prior to such record date by a fractionDistribution, and (y) had retained the numerator Distribution in respect of which the Ordinary Shares and all subsequent dividends and distributions of any nature whatsoever in respect of any stock or securities paid as dividends and distributions and originating directly or indirectly from such Ordinary Shares. A reclassification of the Ordinary Shares into any other class of stock shall be deemed a distribution by the current per share market price Company to the holders of its Ordinary Shares or such shares of such other class of stock within the meaning of paragraph (c) of this Section 5 and, if the outstanding Ordinary Shares shall be changed into a larger or smaller number of Ordinary Shares as a part of such reclassification, such event shall be deemed a subdivision or combination, as the case may be, of the Preferred outstanding Ordinary Shares within the meaning of paragraph (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agentc) of this Section 5. If the portion of the cash, assets, securities or evidences of indebtedness so to be distributed by the Company involve rights, warrants, options or any other form of such subscription rights or warrants applicable to one Preferred Share Convertible Securities and the denominator of which shall be right to exercise or convert such current per share market price of the Preferred Shares (as determined pursuant securities would expire in accordance with its terms prior to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than this Warrant, then the aggregate par value terms of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments such securities shall be made successively whenever such a record date is fixed; and in the event provide that such distribution is not so made, the Purchase Price exercise or convertibility right shall again be adjusted to be the Purchase Price which would then be remain in effect if until 30 days after the date the Holder of this Warrant receives such record date had not been fixedsecurities pursuant to the exercise hereof.

Distributions. In case the Company shall fix a record payment date for the making of a distribution to all holders of the Preferred Shares Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not or cash distributions payable out of consolidated earnings or earned surplus or dividends or distributions referred to in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares subsection (which dividend, for purposes c) of this Agreement, shall be subject to the provisions of Section 11.1.1(A11))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2)warrants, the Purchase Warrant Share Exercise Price to be in effect after such record payment date shall be determined by multiplying the Purchase Warrant Share Exercise Price in effect immediately prior to such record payment date by a fraction, the numerator of which shall be the current total number of shares of Common Stock outstanding multiplied by the Market Price (as defined below) per share market price of the Preferred Shares (as determined pursuant Common Stock immediately prior to Section 11.4) on such record payment date, less the fair market value (as determined in good faith by the Company’s Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agentgood faith) of the portion of the cash, assets, securities said assets or evidences of indebtedness so to be distributed distributed, or of such subscription rights or warrants applicable to one Preferred Share warrants, and the denominator of which shall be the total number of shares of Common Stock outstanding multiplied by such current Market Price per share market of Common Stock immediately prior to such payment date. “Market Price” means, for any security as of any date, the last sales price of such security on the Preferred Shares principal trading market where such security is listed or traded as reported by Bloomberg Financial Markets (or a comparable reporting service of national reputation selected by the Company and reasonably acceptable to the holder hereof if Bloomberg Financial Markets is not then reporting closing sales prices of such security) (in any case, “Bloomberg”), or if the foregoing does not apply, the last reported sales price of such security on a national exchange or in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no such price is reported for such security by Bloomberg, the average of the bid prices of all market makers for such security as reported in the “pink sheets” by Pink Sheets LLC, in each case for such date or, if such date was not a trading day for such security, on the next preceding date which was a trading day. If the Market Price cannot be calculated for such security as of such date on any of the foregoing bases, the Market Price of such security on such date shall be the fair market value as reasonably determined pursuant by an investment banking firm selected by the Company and reasonably acceptable to Section 11.4); PROVIDEDthe holder hereof, HOWEVER, that in no event shall with the consideration costs of such appraisal to be paid upon borne by the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one RightCompany. Such adjustments adjustment shall be made successively whenever such a record payment date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case If after the date hereof the Company shall fix a record date for the making of a distribution distribute to all holders of the Preferred Shares (including its shares of Common Stock any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of cash, evidences of its indebtedness, cash, securities or assets or rights to subscribe for shares of Common Stock expiring at least thirty (30) calendar days after the issuance thereof (excluding any dividend or other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend distribution payable in Preferred shares of Common Stock for which adjustment is made under Section 6(a)), then in each such case the Warrant Shares (which dividend, issuable upon exercise or conversion of each Warrant outstanding immediately following the close of business on the record date for purposes of this Agreement, such distribution shall be subject increased to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be an amount determined by multiplying the Purchase Price in effect number of Warrant Shares issuable immediately prior to such record date by a fraction, the numerator of which shall be is the current Market Price of a share of Common Stock on the trading day immediately prior to the Ex-Date and the denominator of which is the Market Price of a share of Common Stock on the trading day immediately prior to the Ex-Date less the sum of the (1) the amount of cash and (2) the Market Price of the assets, evidences of indebtedness and securities so distributed or of such subscription rights per share market price of Common Stock outstanding on the trading day immediately prior to the Ex-Date (determined for such purpose on the basis of the Preferred Shares aggregate assets, evidences of indebtedness and/or rights distributed with respect to one share of Common Stock as if, for purposes of the definition of “Market Price”, such assets, evidences of indebtedness, securities and/or rights were an “Other Security” as defined herein) (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive, and described in a statement filed with the Rights Warrant Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that any such distribution is not so made, and shall become effective retroactively on the Purchase Price shall again be adjusted to be date immediately after the Purchase Price which would then be in effect if such record date had not been fixedfor the determination of stockholders entitled to receive such distribution. In the event of any adjustment to any Warrant pursuant to this Section 6(b), the Exercise Price for such Warrant shall be appropriately adjusted such that it shall in all cases be equal to the aggregate par value of all Warrant Shares then issuable upon exercise or conversion of such Warrant.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Preferred Shares Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares Stock (which dividend, for purposes of this AgreementPlan, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the then current per share market price of the Preferred Shares Stock (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the CompanyBoard, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one share of Preferred Share Stock and the denominator of which shall be such current per share market price of the Preferred Shares Stock (as determined pursuant to Section 11.4); PROVIDEDprovided, HOWEVERhowever, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which that would then be in effect if such record date had not been fixed.

Distributions. In case If the Company Corporation shall fix a record date for the making of a dividend or other distribution to all holders (by spin-off or otherwise) on shares of Common Stock, whether in cash, Equity Interests of the Preferred Shares Corporation, other securities of the Corporation, evidences of indebtedness of the Corporation or any other Person or any other property (including Equity Interests, other securities or evidences of indebtedness of a subsidiary), or any such distribution made combination thereof, excluding (A) dividends or distributions subject to adjustment pursuant to Section 12(i) or (B) dividends or distributions of rights in connection with the adoption of a consolidation or merger stockholder rights plan in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets customary form (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior including with respect to the payment receipt of such dividendrights in respect of shares of Common Stock (including Warrant Shares) issued subsequent to the initial dividend or distribution of such rights), or a dividend payable then in Preferred each such case, the number of Warrant Shares (which dividend, for purposes issuable upon exercise of this Agreement, Warrant in full (disregarding whether or not this Warrant had been exercisable by its terms at such time) shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined increased by multiplying the Purchase Price in effect immediately prior to such record date number of Warrant Shares by a fraction, the numerator of which shall be is the current Market Price per share market price of Common Stock on such record date and the denominator of which is the Market Price per share of Common Stock on such record date less the Fair Market Value of the Preferred cash and/or any other property, as applicable, to be so paid or distributed in such dividend or distribution in respect of one share of Common Stock (in each case as of the record date of such dividend or distribution); such adjustment shall take effect on the record date for such dividend or distribution. In the event of such adjustment, the Exercise Price shall immediately be decreased by multiplying such Exercise Price by a fraction, the numerator of which is the number of Warrant Shares issuable upon the exercise of this Warrant in full immediately prior to such adjustment (disregarding whether or not this Warrant was exercisable by its terms at such time), and the denominator of which is the new number of Warrant Shares issuable upon exercise of this Warrant determined in accordance with the immediately preceding sentence. Notwithstanding the foregoing, in the event that the Fair Market Value of the cash and/or any other property, as determined pursuant applicable, to Section 11.4be so paid or distributed in such dividend or distribution in respect of one share of Common Stock (in each case as of the record date of such dividend or distribution) is equal to or greater than the Market Price per share of Common Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination then proper provision shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of made such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments this Warrant, the Warrantholder shall be made successively whenever receive, in addition to the applicable Warrant Shares, the amount and kind of such a cash and/or any other property such Warrantholder would have received had such Warrantholder exercised this Warrant immediately prior to such record date is fixed; and (disregarding whether or not this Warrant had been exercisable by its terms at such time). For purposes of the foregoing, in the event that such dividend or distribution in question is ultimately not so made, the Purchase Exercise Price and the number of Warrant Shares issuable upon exercise of this Warrant then in effect shall again be adjusted readjusted, effective as of the date when the Board of Directors determines not to be make such dividend or distribution, to the Purchase Exercise Price which that would then be in effect and the number of Warrant Shares that would then be issuable upon exercise of this Warrant if such record date had not been fixed. For the avoidance of doubt, no increase to the Exercise Price or decrease in the number of Warrant Shares issuable upon exercise of this Warrant shall be made pursuant to this Section 12(iii). Notwithstanding the foregoing provisions of this Section 12(iii), in the event that all or any portion of any such dividend or other distribution is in Other Voting Securities, then with respect to such dividend or distribution (or such portion thereof that is in Other Voting Securities, as applicable), the Warrantholder shall have the option, exercisable in writing delivered to the Corporation within seven Business Days of such Warrantholder’s receipt of the Corporation’s notice pursuant to Section 12(ix) relating to such dividend or other distribution, to elect (1) for the foregoing adjustments set forth in this Section 12(iii) to apply with respect to such dividend or distribution (or such portion thereof that is in Other Voting Securities, as applicable) or (2) in lieu of the foregoing adjustments set forth in this Section 12(iii) with respect to such dividend or distribution (or such portion thereof that is in Other Voting Securities, as applicable), but, for all purposes of this clause (2), after giving effect to the foregoing adjustments set forth in this Section 12(iii) with respect to any portion of such dividend or distribution that is in securities, cash and/or any other property, in each case other than Other Voting Securities, for its right to receive Warrant Shares upon exercise of this Warrant to be converted, effective as of the record date of such dividend or distribution, into the right to exercise this Warrant to acquire such Warrant Shares plus the Other Voting Securities that such Warrant Shares would have been entitled to receive upon consummation of such dividend or distribution, assuming the exercise in full of this Warrant immediately prior to such record date (disregarding whether or not this Warrant was exercisable by its terms at such time); provided that for purposes of this clause (2), (x) the number and type of Other Voting Securities so deliverable upon any exercise of this Warrant shall be adjusted to take into account any stock or security dividends, splits, reverse splits, spin-offs, split-ups, mergers, reclassifications, reorganizations, recapitalizations, combinations or exchanges of securities and the like from and after the consummation of such dividend or distribution in question and at or prior to such exercise of this Warrant, and (y) with respect to any such Other Voting Securities that are described in clause (b) of the definition of Other Voting Securities, the terms of such Other Voting Securities, as issued upon exercise of this Warrant, shall take into account any anti-dilution or other adjustments that would have been applicable to such Other Voting Securities had such Other Voting Securities been outstanding from and after the consummation of such dividend or distribution in question. In the event that such dividend or distribution in question (or such portion thereof that is in Other Voting Securities, as applicable) is ultimately not so made, this Warrant shall be readjusted, effective as of the date when the Board of Directors determines not to make such dividend or distribution (or such portion thereof that is in Other Voting Securities, as applicable), as though the record date thereof had not been fixed.

Distributions. In case If the Company shall fix Company, at any time after the Rights Dividend Declaration Date, fixes a record date for the making of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a share exchange, consolidation or merger in which the Company is the continuing or surviving corporation) of evidences cash (other than a periodic cash dividend out of indebtednessthe earnings or retained earnings of the Company), cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividendShares, for purposes but including any dividend payable in stock other than Preferred Shares), evidences of this Agreementindebtedness, shall be subject to the provisions of Section 11.1.1(A))) or convertible securitiessubscription rights, or subscription rights options or warrants (excluding those referred to in Section 11.211(a)(iv)), then, in each such case, the Purchase Exercise Price to be in effect after such record date shall will be determined by multiplying the Purchase Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall will be the current per share market price Current Per Share Market Price of the a Preferred Shares (as determined pursuant to Section 11.4) Share on such record date, less the fair market value per Preferred Share (as determined in good faith by the Board of Directors of the CompanyBoard, whose determination shall will be described in a statement filed with the Rights AgentAgent and will be conclusive and binding on the Rights Agent and the holders of the Rights) of the portion of the cash, assets, securities assets or evidences of indebtedness so to be so distributed or of such subscription rights rights, options or warrants applicable to one Preferred Share Share, and the denominator of which shall will be such current per share market price Current Per Share Market Price of the a Preferred Shares (as determined pursuant to Section 11.4)Share on such record date; PROVIDEDprovided, HOWEVERhowever, that in no event shall will the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued issuable upon the exercise of one Right. Such adjustments shall adjustment will be made successively whenever such a record date is fixed; , and in the event that such distribution is not so made, then the Purchase Exercise Price shall again will be adjusted to be the Purchase Exercise Price which that would then be have been in effect if such record date had not been fixed.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Preferred Common Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Common Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Common Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Common Share and the denominator of which shall be such current per share market price of the Preferred Common Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants: (a) In case the Company event that a High Leverage Condition exists (or would arise as a result of a Distribution), neither Borrower nor the Trust shall fix a record date make any Distribution if such Distribution is in excess of the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed the lesser of (i) an amount equivalent to 0.9252 cents per share of common stock of the Trust or (ii) ninety-five percent (95%) of their respective Funds from Operations for the making of four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid. (b) In the event that a distribution to all holders Target Leverage Condition exists, the Borrower and the Trust shall not make any Distribution if such Distribution is in excess of the Preferred Shares amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust so long as (i) no Event of Default shall have occurred and be continuing on the date of any such distribution made repurchase and (ii) no Default or Event of Default shall occur as a result of any such repurchase. Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement. (c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with a consolidation the repurchase of common or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital preferred stock of the Company to Trust at any time after an Event of Default shall have occurred and be issued upon exercise continuing. (d) Notwithstanding the foregoing, at any time when an Event of one Right. Such adjustments Default shall have occurred and be made successively whenever such a record date is fixed; continuing and in the event that such distribution is not so madematurity of the Obligations has been accelerated, neither the Purchase Price Borrower nor the Trust shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixedmake any Distributions whatsoever, directly or indirectly.

Distributions. In case (a) The Managers, in their sole discretion (except as to Tax Distributions), shall cause the Company shall fix a record date for the making of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share distribute Distributable Cash of the Company for the four quarters ended immediately prior quarterly to the payment Members in proportion to their respective Membership Interests in effect at the time of such dividend, or a dividend payable in Preferred Shares distribution not later than 30 days after the end of each calendar quarter. (which dividend, for purposes b) The first three quarterly distributions of this Agreement, shall be subject each Fiscal Year made pursuant to the provisions of Section 11.1.1(A))7.05(a) shall be made based upon revised quarterly estimates of the annual Distributable Cash. Distributions of Distributable Cash made to a Member during a Fiscal Year shall be deemed to be advances on account of such Member’s share of the aggregate Distributable Cash as finally determined for the Fiscal Year in respect of which they are made. Any overdistribution of Distributable Cash to a Member in respect of any Fiscal Year shall be repaid by such Member to the Company and, if applicable, distributed to the Members which have received an underdistribution, on the later of (i) 45 days after the end of such Fiscal Year or convertible securities(ii) 45 days after the Company has given notice thereof to such Member, or subscription rights or warrants (excluding those referred which notice shall be given as soon as reasonably practicable after the end of such Fiscal Year. Upon providing such notice to in Section 11.2)the Member receiving any such overdistribution, the Purchase Price to be in effect after such record date shall be determined by multiplying Company, acting through the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors Managers or any authorized officer of the Company, whose determination shall be described in a statement filed with eliminate such overdistribution made to such Member by adjusting the Rights Agentdistributions of Distributable Cash during such Fiscal Year to the maximum extent possible and subtracting any remaining difference from the succeeding year’s distributions of Distributable Cash to that Member. (c) Notwithstanding the provisions of the portion of the cashSection 7.05(a), assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined before making any distribution pursuant to Section 11.4); PROVIDED7.05(a) the Company shall use its commercially reasonable efforts to distribute, HOWEVERwithin a reasonable time after the end of each calendar quarter, that an aggregate amount of Distributable Cash sufficient, in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value opinion of the Managers, to enable the Members to pay the federal income tax and estimated federal income tax obligations of the Members with respect to their respective distributive shares of capital stock Company taxable income or loss (or items thereof), assuming that each Member is taxable thereon at the highest regular marginal federal income tax rate in effect from time to time (each a “Tax Distribution”). If Distributable Cash is insufficient for any Tax Distribution, the shortfall shall be made up as soon thereafter as possible. Each Tax Distribution to the Members pursuant to this Section 7.05(c) shall be made to the Members of record in proportion to their respective Membership Interests. (d) Except in connection with the dissolution of the Company, no Member shall be entitled to receive as distributions from the Company any Company assets other than cash. (e) Distributions made under this Agreement shall be made by bank check, or in such other manner as the Managers of any authorized officer of the Company may reasonably determine with respect to be issued upon exercise of one Rightsuch distribution. Such adjustments distributions shall be made successively whenever to such a record date is fixed; and accounts or addresses as are designated by the Members from time to time or, in the absence of a designation, to the appropriate address contained in Schedule I. (f) Should any Member be subject to withholding pursuant to the Code or any other provision of law, the Company may withhold all amounts otherwise distributable to such Member as may be required by law and any amounts so withheld shall be deemed to have been distributed to such Member under this Agreement. If any sums are withheld pursuant to the provisions of this Section 7.05(f), the Company shall remit the sums so withheld to and file the required forms with the United States Internal Revenue Service or other applicable government agency. In the event of any claimed over-withholding, a Member shall be limited to an action against the United States Internal Revenue Service or other applicable government agency for refund and hereby waives any claim or right of action against the Company or the Managers on account of such withholding. Furthermore, if the amounts required to be withheld exceed the amounts which would otherwise have been distributed to such Member, such Member shall contribute any deficiency to the Company within ten days of notice from any Manager or officer of the Company. Such contribution shall not be treated as a contribution for purposes of computing the contributing Member’s Capital Account. If such deficiency is not contributed within such time, any non-contributed amounts shall be considered a demand loan from the Company to such Member, with interest at a rate equal to the lesser of (a) the Prime Rate plus two percent (2%) per annum (calculated on the basis of a year of three hundred sixty-five (365) or three hundred sixty-six (366) days, as the case may be, but counting only the actual number of days elapsed), or (b) the maximum legal rate of interest then permitted, which interest shall be treated as an item of Company income, until discharged by such Member by repayment. Such demand loan shall be repaid, without prejudice to any other remedies at law or in equity that the Company may have, out of distributions to which the debtor Member would otherwise be subsequently entitled under this Agreement. If for any reason the Company becomes liable for any withholding tax in excess of the amount actually withheld, or treated as a demand loan from a Member, each Member with respect to whom such withholding tax is imposed shall indemnify, defend, protect, save and hold harmless the Company and the Managers and officers of the Company against any such tax, including any penalties and interest imposed with respect thereto. Any payments required by the preceding sentence shall be made in immediately available funds within ten days of the delivery of notice by any Manager or officer of the Company, describing in reasonable detail the reason for the payment and the computation of the amount due. Any amount not paid within such ten day period shall become a demand loan as provided above. (g) Notwithstanding anything to the contrary contained herein, distributions of Distributable Cash and other property upon dissolution of the Company shall be made pursuant to the provisions of Section 10.03. (h) No distribution shall be declared and paid if payment of such distribution is not so made, would cause the Purchase Price shall again be adjusted Company to be violate any limitation on distributions provided in the Purchase Price which would then be in effect if such record date had not been fixedAct.

Distributions. In case the Company shall fix a record date ------------- for the making of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a reasonably detailed statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDEDprovided, HOWEVERhowever, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case (a) Subject to the Company shall fix a record date for the making other provisions of a distribution to all holders of the Preferred Shares (including any such distribution made this Article IV, Section 6.9(g) and Section 10.5, and except in connection with a consolidation Liquidation Event, the Board may in its sole discretion from time to time authorize distributions in cash out of Available Cash to the Members on a pro rata basis based on the Members’ Percentage Interest. (b) Notwithstanding anything to the contrary contained herein, (i) unless otherwise set forth in the applicable Equity Incentive Plan (if any) or merger applicable Award Agreement, no Member will share in which any distribution under Section 4.2 with respect to Profits Interest Units until aggregate distributions have been made to all Members pursuant to this Agreement following such Award of Profits Interest Units in an amount equal to the applicable Distribution Threshold of such Profits Interest Units (as may be adjusted to reflect Capital Contributions (if any) made and any other changes in the Company’s capitalization on or after the date of such Award); and (ii) no Member shall receive any distributions pursuant to Section 4.2 with respect to any Profits Interest Units that are Unvested Profits Interest Units as of the date of distribution, but the distributions that would otherwise have been made pursuant to Section 4.2 in respect of any such Unvested Profits Interest Unit (had such Unvested Profits Interest Unit then been a Vested Profits Interest Unit) shall instead be held in a separate reserve by the Company for distribution to the holder of such Unvested Profits Interest Unit should the Unvested Profits Interest Unit become vested; and (iii) upon the vesting of any Profits Interest Unit that was an Unvested Profits Interest Unit, the holder of such Profits Interest Unit shall be entitled to receive any distributions held in reserve for such Profits Interest Unit pursuant to the foregoing clause (ii) as soon as reasonably practicable following vesting. In the event that an Unvested Profits Interest Unit (or corresponding Upstairs Unit) is forfeited, repurchased or redeemed prior to vesting, then any such amounts held back in reserve for such Unvested Profits Interest Unit pursuant to the foregoing clause (ii) shall be forfeited by the Member (and any holder of the corresponding Upstairs Unit) for whose benefit such amounts were held back and the Member that held such Unvested Profits Interest Unit shall not be entitled to any other distributions or other amounts in respect of such forfeited, repurchased or redeemed Unvested Profits Interest Unit. (c) In the event of any Sale of the Company (including an Approved Sale), the net proceeds from such transaction (after reduction for any reasonable and documented fees and expenses incurred by the Company) shall be allocated among the Members participating in such transaction on a pro rata basis (based on the number of Units included in such transaction), subject to Section 4.2(b). If any portion of the consideration payable in such Sale of the Company is placed into escrow, held back and/or is payable to the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets participating Members subject to contingencies (other than a regular periodic cash dividend at a rate not in excess of 125% such portion of the rate of consideration, the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2“Additional Consideration”), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4i) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and consideration from the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock Sale of the Company to be issued upon exercise of one Right. Such adjustments that is not Additional Consideration (such portion, the “Initial Consideration”) shall be made successively whenever allocated among the Members in accordance with the first sentence of this Section 4.2(c) as if the Initial Consideration were the only consideration payable in connection with such a record date is fixed; Sale of the Company and (ii) any Additional Consideration which becomes payable to the participating Members upon satisfaction of such contingencies shall be allocated among the Members in accordance with the event that such distribution is not so made, first sentence of this Section 4.2(c) after taking into account the Purchase Price shall again be adjusted to be previous payment of the Purchase Price which would then be in effect if such record date had not been fixedInitial Consideration as part of the same transaction.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Series B Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the then current per share market price of the Series B Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the CompanyBoard, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one share of Series B Preferred Share and the denominator of which shall be such then-current per share market price of the Series B Preferred Shares (as determined pursuant to Section 11.4); PROVIDEDprovided, HOWEVERhowever, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which that would then be in effect if such record date had not been fixed.

Distributions. In case If the Company shall fix Company, at any time after the Rights Dividend Declaration Date, fixes a record date for the making of a distribution to all holders of the Preferred Shares Stock (including any such distribution made in connection with a share exchange, consolidation or merger in which the Company is the continuing or surviving corporation) of evidences cash (other than a periodic cash dividend out of indebtednessthe earnings or retained earnings of the Company), cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in shares of Preferred Shares (which dividendStock, for purposes but including any dividend payable in stock other than Preferred Stock), evidences of this Agreementindebtedness, shall be subject to the provisions of Section 11.1.1(A))) or convertible securitiessubscription rights, or subscription rights options or warrants (excluding those referred to in Section 11.211(b)), then, in each such case, the Purchase Exercise Price to be in effect after such record date shall will be determined by multiplying the Purchase Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall will be the current per Current Per Share Market Price of a share market price of the Preferred Shares (as determined pursuant to Section 11.4) Stock on such record date, less the fair market value per share of Preferred Stock (as determined in good faith by the Board of Directors of the CompanyBoard, whose determination shall will be described in a statement filed with the Rights AgentAgent and will be conclusive and binding on the Rights Agent and the holders of the Rights) of the portion of the cash, assets, securities assets or evidences of indebtedness so to be so distributed or of such subscription rights rights, options or warrants applicable to one share of Preferred Share Stock, and the denominator of which shall be such current per Current Per Share Market Price of a share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDEDStock on such record date, HOWEVER, it being understood that in no event shall will the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued issuable upon the exercise of one Right. Such adjustments shall adjustment will be made successively whenever such a record date is fixed; , and in the event that such distribution is not so made, then the Purchase Exercise Price shall again will be adjusted to be the Purchase Exercise Price which that would then be have been in effect if such record date had not been fixed.

Distributions. In case If, at any time after the Issue Date, the Company declares or makes any distribution of cash or any other assets (or rights to acquire such assets) to holders of Common Stock, as a partial liquidating dividend or otherwise, including without limitation any dividend or distribution to the Company’s shareholders in shares (or rights to acquire shares) of capital stock of a subsidiary) (a “Distribution”), the Company shall fix deliver written notice of such Distribution (a “Distribution Notice”) to the Holder at least thirty (30) days prior to the earlier to occur of (i) the record date for determining shareholders entitled to such Distribution (the making “Record Date”) and (ii) the date on which such Distribution is made (the “Distribution Date”) (the earlier of such dates being referred to as the “Determination Date”). In the Distribution Notice to the Holder, the Company shall indicate whether the Company has elected (A) to deliver to the Holder, upon any exercise of this Class B Warrant after the Determination Date, the same amount and type of assets being distributed in such Distribution as though the Holder were, on the Determination Date, a holder of a distribution to all holders number of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in shares of Common Stock into which the Company this Class B Warrant is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment exercisable as of such dividend, Determination Date (such number of shares to be determined at the Exercise Price then in effect and without giving effect to any limitations on such exercise) or a dividend payable in Preferred Shares (which dividend, for purposes B) upon any exercise of this AgreementClass B Warrant on or after the Determination Date, shall be subject to reduce the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred Exercise Price applicable to in Section 11.2), such exercise by reducing the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Exercise Price in effect on the Business Day immediately prior preceding the Record Date by an amount equal to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (of the assets to be distributed divided by the number of shares of Common Stock as to which such Distribution is to be made, such fair market value to be reasonably determined in good faith by the Company’s Board of Directors Directors. If the Company does not notify the Holder of its election pursuant to the Companypreceding sentence on or prior to the Determination Date, whose determination the Company shall be described in a statement filed with the Rights Agentdeemed to have elected clause (A) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixedpreceding sentence.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Preferred Shares Incentive Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares Incentive Stock (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the then current per share market price of the Preferred Shares Incentive Stock (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the CompanyBoard, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share share of Incentive Stock and the denominator of which shall be such current per share market price of the Preferred Shares Incentive Stock (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Preferred Shares Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares Stock (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price Current Per Share Market Price of the Preferred Shares Stock (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the CompanyBoard, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one share of Preferred Share Stock and the denominator of which shall be such current per share market price Current Per Share Market Price of the Preferred Shares Stock (as determined pursuant to Section 11.4); PROVIDEDprovided, HOWEVERhowever, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case the Company shall fix a record date ------------- for the making of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case a. The Preferred Member shall be entitled to receive, when and as authorized by the Company shall fix Board and so long as there would be no violation of the provisions of the Operating Agreement as a record date for result of any such distribution, out of Distributable Cash (as defined below), cash distributions (the making “Preferred Distributions”) with respect to each Preferred Unit at the rate of a distribution to all holders 13% of the Preferred Shares Unit Redemption Price per annum. Such distributions shall be payable quarterly on January 1, April 1, July 1 and October 1 of each year (including each, a “Distribution Payment Date”, and each such quarter, a “Distribution Period”), beginning July 1, 2008. The Preferred Distributions shall be non-cumulative, and any amounts of such distribution distributions that are not authorized by the Board to be paid during a Distribution Period shall not be carried over to subsequent Distribution Periods. b. Distributions shall be made to the GMAC Member at the times and in connection with a consolidation the aggregate amounts determined by the board of directors of the Company (the “Board”); provided that no distributions shall be made to the GMAC Member at any time Preferred Units are outstanding and any Preferred Distributions for the then-current Distribution Period have not been authorized or merger in which any Preferred Distributions that have been authorized (whether or not for the then-current Distribution Period) remain unpaid (unless sufficient funds have been set aside for such payments). c. Notwithstanding anything to the contrary, no distributions shall be authorized or paid if and when the Company is Insolvent or would be rendered Insolvent by the continuing distribution or surviving corporation) of evidences of indebtedness, cash, securities would violate the Act or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for applicable law. For purposes of this Agreement, shall be subject to (1) “Insolvent” means such time as when the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described ’s assets become less than the sum of its liabilities or the Company becomes unable to pay its debts as they become due in a statement filed with the Rights Agentusual course of business and (2) of the “Distributable Cash” means that portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share cash and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock cash equivalent assets of the Company which, in light of the Company’s then current and foreseeable sources of, and needs for, cash, exceeds the amount of cash needed by the Company, as determined by a majority of the Board, to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such (i) service its debts and obligations in a record date is fixed; timely fashion, (ii) maintain adequate working capital and in the event that such distribution is not so madereserves, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixedand (iii) conduct its business and carry out its purposes.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Preferred Common Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Common Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Common Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Common Share and the denominator of which shall be such current per share market price of the Preferred Common Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants: (a) In case the Company event that a High Leverage Condition exists (or would arise as a result of a Distribution), neither Borrower nor the Trust shall fix a record date make any Distribution if such Distribution is in excess of the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed the lesser of (i) an amount equivalent to 0.9252 cents per share of common stock of the Trust or (ii) ninety-five percent (95%) of their respective Funds from Operations for the making of four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid. (b) In the event that a distribution to all holders Target Leverage Condition exists, the Borrower and the Trust shall not make any Distribution if such Distribution is in excess of the Preferred Shares amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust so long as (i) no Event of Default shall have occurred and be continuing on the date of any such distribution made repurchase and (ii) no Default or Event of Default shall occur as a result of any such repurchase. Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement; (c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with a consolidation the repurchase of common or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital preferred stock of the Company to Trust at any time after an Event of Default shall have occurred and be issued upon exercise continuing; and (d) Notwithstanding the foregoing, at any time when an Event of one Right. Such adjustments Default shall be made successively whenever such a record date is fixed; have occurred and in the event that such distribution is not so madematurity of the Obligations has been accelerated, neither the Purchase Price Borrower nor the Trust shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixedmake any Distributions whatsoever, directly or indirectly.

Distributions. In case If the Company shall fix declare or make any ------------- distribution of its assets (or rights to acquire its assets) to holders of Common Stock as a partial liquidating dividend or otherwise (including without limitation any dividend or distribution to the Company's stockholders in cash or shares (or rights to acquire shares) of capital stock of a subsidiary) (a "Distribution"), the Company shall deliver written ------------ notice of such Distribution (a "Distribution Notice") to the Holder at least ------------------- ten (10) Business Days prior to the earlier to occur of (i) the record date for determining stockholders entitled to such Distribution (the making of a distribution "Record ------ Date") and (ii) the date on which such Distribution is made (the ---- "Distribution Date"). The Holder shall be entitled, at its option (to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which be ----------------- exercised by written notice delivered to the Company on or before the tenth (10th) Business Day following the date on which a Distribution Notice is delivered to the continuing Holder), either (A) upon any exercise of this Warrant on or surviving corporation) of evidences of indebtednessafter the Record Date, cash, securities to be entitled to receive on the Distribution Date (for any exercise effected on or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))Distribution Date) or convertible securities, or subscription rights or warrants the applicable Delivery Date (excluding those referred to in Section 11.2for any exercise effected after the Distribution Date), the Purchase amount of such assets which would have been payable to the holder with respect to the shares of Common Stock issuable upon such exercise (without giving effect to any limitations on such exercise contained in this Warrant) had the Holder been the holder of such shares of Common Stock on the Record Date or (B) upon any exercise of this Warrant on or after the Record Date, to reduce the Exercise Price applicable to be in effect after such record date shall be determined exercise by multiplying reducing the Purchase Exercise Price in effect on the Business Day immediately prior preceding the Record Date by an amount equal to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (of the assets to be distributed divided by the number of shares of Common Stock as ---------- to which such Distribution is to be made, such fair market value to be reasonably determined in good faith by the independent members of the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case If the Company shall fix Company, at any time after the Rights Dividend Declaration Date, fixes a record date for the making of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a share exchange, consolidation or merger in which the Company is the continuing or surviving corporation) of evidences cash (other than a periodic cash dividend out of indebtednessthe earnings or retained earnings of the Company), cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividendShares, for purposes but including any dividend payable in shares other than Preferred Shares), evidences of this Agreementindebtedness, shall be subject to the provisions of Section 11.1.1(A))) or convertible securitiessubscription rights, or subscription rights options or warrants (excluding those referred to in Section 11.211(b)), then, in each such case, the Purchase Exercise Price to be in effect after such record date shall will be determined by multiplying the Purchase Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall will be the current per share market price Current Per Share Market Price of the a Preferred Shares (as determined pursuant to Section 11.4) Share on such record date, less the fair market value per Preferred Share (as determined in good faith by the Board of Directors of the CompanyBoard, whose determination shall will be described in a statement filed with the Rights AgentAgent and will be conclusive and binding on the Rights Agent and the holders of the Rights) of the portion of the cash, assets, securities assets or evidences of indebtedness so to be so distributed or of such subscription rights rights, options or warrants applicable to one Preferred Share Share, and the denominator of which shall be such current per share market price Current Per Share Market Price of the a Preferred Shares (as determined pursuant to Section 11.4)Share on such record date; PROVIDEDprovided, HOWEVERhowever, that in no event shall will the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of share capital stock of the Company to be issued issuable upon the exercise of one Right. Such adjustments shall adjustment will be made successively whenever such a record date is fixed; , and in the event that such distribution is not so made, then the Purchase Exercise Price shall again will be adjusted to be the Purchase Exercise Price which that would then be have been in effect if such record date had not been fixed.

Distributions. In case Notwithstanding anything to the Company contrary contained herein (including, for the avoidance of doubt, Section 2(j)), the Holder, as the holder of this Warrant, shall fix be entitled to receive, and shall be paid by the Company, any dividend paid or distribution of any kind made to the holders of Common Stock, other than a dividend or distribution resulting in an adjustment pursuant to Section 4(a), to the same extent as if the Holder had exercised this Warrant in full in a Cash Exercise (without regard to the Beneficial Ownership Limitation or any other limitations on exercise herein or elsewhere and without regard to whether or not a sufficient number of shares are authorized, reserved and available to effect any such exercise and issuance) and had held such Warrant Shares on the record date for such dividend or distribution (or, if there is no record date therefor, on the making date of a such dividend or distribution). Payments or distributions under this Section 4(b) shall be made concurrently with the dividend or distribution to all holders of the Preferred Shares (including Common Stock. For the avoidance of doubt, if at any such distribution made in connection with a consolidation or merger in which time the Company is the continuing grants, issues or surviving corporation) of evidences of indebtednesssells any options, cashconvertible securities or rights to purchase stock, warrants, securities or assets other property pro rata to the record holders of any class of its capital stock (the “Purchase Rights”), and such grant, issuance or sale does not result in a dividend or distribution resulting in an adjustment pursuant to Section 4(a), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights that the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon exercise in full of this Warrant (without regard to the Beneficial Ownership Limitation or any other than limitations on exercise herein or elsewhere and without regard to whether or not a regular periodic cash dividend at sufficient number of shares are authorized, reserved and available to effect any such exercise and issuance) immediately before the date on which a rate not in excess record is taken for the grant, issuance or sale of 125% of the rate of the last regular periodic cash dividend theretofore paid such Purchase Rights, or, in case regular periodic cash dividends have not theretofore been paidif no such record is taken, at a rate not in excess the date as of 50% which the record holders of the average net income per share of the Company Common Stock are to be determined for the four quarters ended immediately prior to the payment grant, issue or sale of such dividendPurchase Rights. For the avoidance of doubt, or in the case of a dividend payable in Preferred Shares (or distribution for which dividend, for purposes of this Agreement, shall an adjustment is required to be subject made pursuant to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.24(a), the Purchase Price Holder shall not be entitled to be participate in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined dividend or distribution pursuant to this Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.44(b); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Series A Preferred Shares (including any such distribution made in connection with a consolidation consolidation, amalgamation or merger in which the Company is the continuing or surviving corporationcompany) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend or bonus issue payable in Series A Preferred Shares (which dividenddividend or bonus issue, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the then current per share market price of the Series A Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the CompanyBoard, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Series A Preferred Share and the denominator of which shall be such current per share market price of the Series A Preferred Shares (as determined pursuant to Section 11.4); PROVIDEDprovided, HOWEVERhowever, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which that would then be in effect if such record date had not been fixed.

Distributions. In case If after the date hereof the Company shall fix distribute to all holders of its shares of Common Stock evidences of its indebtedness, shares of another class of capital stock ("Other Shares"), assets (excluding cash distributions made as a dividend payable out of earnings or out of surplus legally available for dividends under the laws of the jurisdiction of incorporation of the Company) or rights to subscribe to shares of Common Stock, then in each such case, unless the Company elects to reserve such indebtedness, assets, rights or shares for distribution to each holder of a Warrant upon the exercise of the Warrants so that such holder will receive upon such exercise, in addition to the shares of Common Stock to which such holder is entitled, the amount and kind of such indebtedness, assets, rights or shares which such holder would have received if such holder had, immediately prior to the record date for the making distribution of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cashassets, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2)shares, exercised the Warrants and received Common Stock, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Exercise Price in effect immediately prior to such record date distribution shall be decreased to an amount determined by multiplying such Exercise Price by a fraction, the numerator of which shall be is the current per Fair Value of a share market price of the Preferred Shares (as determined pursuant to Section 11.4) on Common Stock at the date of such record date, distribution less the fair market value of the evidences of indebtedness, Other Shares, assets or subscription rights as the case may be, so distributed (as determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive, and described in a reasonably detailed statement filed with the Rights Warrant Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be is the Fair Value of a share of Common Stock at such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Rightdate. Such adjustments adjustment shall be made successively whenever such a record date is fixed; and in the event that any such distribution is not so made, and shall become effective retroactively on the Purchase Price shall again be adjusted to be date immediately after the Purchase Price which would then be in effect if such record date had not been fixedfor the determination of stockholders entitled to receive such distribution.

Distributions. In case If, at any time after the Issue Date, the Company declares or makes any distribution of cash or any other assets (or rights to acquire such assets) to holders of Common Stock, including without limitation any dividend or distribution to the Company’s stockholders in shares (or rights to acquire shares) of capital stock of a subsidiary) (a “Distribution”), the Company shall fix deliver written notice of such Distribution (a “Distribution Notice”) to the Holder at least fifteen (15) days prior to the earlier to occur of (i) the record date for determining stockholders entitled to such Distribution (the making “Record Date”) and (ii) the date on which such Distribution is made (the “Distribution Date”)(the earlier of such dates being referred to as the “Determination Date”). In the event of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which Distribution, the Company is shall reduce the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Conversion Price in effect on the Business Day immediately prior preceding the Record Date by an amount equal to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (of the assets to be distributed divided by the number of shares of Common Stock as to which such Distribution is to be made, such fair market value to be reasonably determined in good faith by the independent members of the Company’s Board of Directors and approved by the holders of a majority in principal amount of the CompanyNotes; provided, whose determination however, that if the Holder notifies the Company prior to the Determination Date that it wishes to receive its share of the assets being distributed, the Company shall deliver to the Holder, at the same time that it makes such Distribution to its stockholders, the same amount and type of assets (including, without limitation, cash) being distributed as though the Holder were, on the Determination Date, the holder of a number of Conversion Shares into which this Note is convertible as of such Determination Date (such number of shares to be determined without giving effect to any limitations on such conversion). If the Holder does not notify the Company of its election pursuant to the preceding sentence on or prior to the Determination Date, the Company shall reduce the Conversion Price as described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixedpreceding sentence.

Distributions. In case If the Company shall fix Company, at any time after the Rights Dividend Declaration Date, fixes a record date for the making of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation share exchange, consolidation, merger, amalgamation or merger arrangement in which the Company is the continuing or surviving corporation) of evidences cash (other than a periodic cash dividend out of indebtednessthe earnings or retained earnings of the Company), cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividendShares, for purposes but including any dividend payable in share or stock other than Preferred Shares), evidences of this Agreementindebtedness, shall be subject to the provisions of Section 11.1.1(A))) or convertible securitiessubscription rights, or subscription rights options or warrants (excluding those referred to in Section 11.211(b)), then, in each such case, the Purchase Exercise Price to be in effect after such record date shall will be determined by multiplying the Purchase Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall will be the current per Current Per Share Market Price of a share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value per share of Preferred Shares (as determined in good faith by the Board of Directors of the CompanyBoard, whose determination shall will be described in a statement filed with the Rights AgentAgent and will be conclusive and binding on the Rights Agent and the holders of the Rights) of the portion of the cash, assets, securities assets or evidences of indebtedness so to be so distributed or of such subscription rights rights, options or warrants applicable to one share of Preferred Share Shares, and the denominator of which shall will be such current per the Current Per Share Market Price of a share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDEDon such record date, HOWEVER, it being understood that in no event shall will the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of share in the capital stock of the Company to be issued issuable upon the exercise of one Right, if any. Such adjustments shall adjustment will be made successively whenever such a record date is fixed; , and in the event that if such distribution is not so made, then the Purchase Exercise Price shall again will be adjusted to be the Purchase Exercise Price which that would then be have been in effect if such record date had not been fixed.

Distributions. In case (a) If at any time when there are Loaned Shares outstanding under this Agreement, Lender pays a cash dividend or makes a cash distribution in respect of all of its outstanding Common Stock, Borrower shall pay to Lender (whether or not Borrower is a holder of any or all of the Company shall fix a outstanding Loaned Shares), within three Business Days after the payment of such dividend or distribution, an amount in cash equal to the product of (i) the amount per share of Common Stock of such dividend or distribution and (ii) the number of Loaned Shares outstanding on the record date for on which the making of dividend or distribution was paid. (b) If at any time when there are Loaned Shares outstanding under this Agreement, Lender makes a distribution to in respect of all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets its outstanding Common Stock (other than a regular periodic cash dividend at distribution upon liquidation or a rate reorganization in bankruptcy) in property or securities, including any options, warrants, rights or privileges in respect of securities (other than a distribution of Common Stock, but including any options, warrants, rights or privileges exercisable for, convertible into or exchangeable for Common Stock) (a “Non-Cash Distribution”), Borrower shall deliver to Lender (whether or not in excess Borrower is a holder of 125% any or all of the rate outstanding Loaned Shares) in kind, within three Business Days after the date of such Non-Cash Distribution, the last regular periodic cash dividend theretofore paid or, property or securities so distributed in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess an amount (the “Delivery Amount”) equal to the product of 50% of (i) the average net income amount per share of Common Stock of such Non-Cash Distribution and (ii) the Company for number of Loaned Shares outstanding on the four quarters ended immediately record date on which such Non-Cash Distribution was made; provided that in lieu of such delivery, Borrower may, with the prior written consent of Lender not to be unreasonably withheld or delayed, deliver to Lender an amount of cash equal to the payment market value of such dividendthe Delivery Amount, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be as determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined Borrower in good faith by the Board of Directors of the Company, whose determination using commercially reasonable means; provided that Borrower shall be described use commercially reasonable efforts to consult with Lender in a statement filed connection with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or determination of such subscription rights or warrants applicable to one Preferred Share market value; and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVERprovided further, that in no event determining such market value, Borrower shall the consideration not be required to take into account or be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixedbound by any considerations raised by Lender.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price Current Per Share Market Price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the CompanyDirectors, whose determination shall be described in a statement filed with the Rights AgentAgent and shall be conclusive for all purposes) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price Current Per Share Market Price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDEDprovided, HOWEVERhowever, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case the Company shall fix a record date ------------- for the making of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDEDprovided, HOWEVERhowever, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDEDprovided, HOWEVERhowever, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case the Company shall fix a record date for ------------- the making of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A)) hereof)) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to defined in Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one RightShares. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case If, at any time after the Issue Date, the Company declares or makes any distribution of cash or any other assets (or rights to acquire such assets) to holders of Common Stock, as a partial liquidating dividend or otherwise, including without limitation any dividend or distribution to the Company's stockholders in shares (or rights to acquire shares) of capital stock of a subsidiary) (a "Distribution"), the Company shall fix deliver written notice of such Distribution (a "Distribution Notice") to the Holder at least twenty (20) days prior to the earlier to occur of (i) the record date for determining stockholders entitled to such Distribution (the making "Record Date") and (ii) the date on which such Distribution is made (the "Distribution Date") (the earlier of such dates being referred to as the "Determination Date"). In the Distribution Notice to a Holder, the Company shall indicate whether the Company has elected (A) to deliver to such Holder, upon any exercise of this Warrant after the Determination Date, the same amount and type of assets being distributed in such Distribution as though the Holder were, on the Determination Date, a holder of a distribution to all holders number of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in shares of Common Stock into which the Company this Warrant is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment exercisable as of such dividend, Determination Date (such number of shares to be determined at the Exercise Price then in effect and without giving effect to any limitations on such exercise) or a dividend payable in Preferred Shares (which dividend, for purposes B) upon any exercise of this AgreementWarrant on or after the Determination Date, shall be subject to reduce the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred Exercise Price applicable to in Section 11.2), such exercise by reducing the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Exercise Price in effect on the Business Day immediately prior preceding the Record Date by an amount equal to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (of the assets to be distributed divided by the number of shares of Common Stock as to which such Distribution is to be made, such fair market value to be reasonably determined in good faith by the Company's Board of Directors Directors. If the Company does not notify the Holders of its election pursuant to the Companypreceding sentence on or prior to the Determination Date, whose determination the Company shall be described in a statement filed with the Rights Agentdeemed to have elected clause (A) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixedpreceding sentence.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case Borrower shall not, and shall not allow any Subsidiary to (a) repurchase or redeem any class of stock or other equity interest other than (i) pursuant to employee, director or consultant repurchase plans, employee stock option plans, the Company shall fix a record date Series C Repurchase Agreement (subject to, for the making avoidance of a distribution to all holders doubt, the specified cumulative limit in the definition “Permitted Series C Repurchases”), or agreements entered into in the ordinary course of the Preferred Shares (including any such distribution made business, or other similar agreements or in connection with a consolidation withholding taxes (including in connection with restricted stock agreements) incurred solely in connection with the foregoing, provided, however, in each case the repurchase or merger in which redemption price does not exceed the Company is the continuing original consideration paid for such stock or surviving corporation) of evidences of indebtedness, cash, securities or assets equity interest (other than a regular periodic the net exercise of any stock options), or (b) declare or pay any cash dividend at or make a rate not cash distribution on any class of stock or other equity interest, except that (i) a Subsidiary may pay dividends or make distributions to Borrower and (ii) so long as no Event of Default has occurred and is continuing, Borrower may pay cash dividends pursuant to Permitted Series C Repurchases (subject to, for the avoidance of doubt, the cumulative limit indicated in such definition), or (c) lend money to any employees, officers or directors or guarantee the payment of any such loans granted by a third party in excess of 125% of $100,000 in the rate of the last regular periodic cash dividend theretofore paid oraggregate outstanding other than Permitted Investments or (d) waive, in case regular periodic cash dividends have not theretofore been paidrelease or forgive any Indebtedness owed by any employees, at a rate not officers or directors in excess of 50% $100,000 in the aggregate; provided that notwithstanding clauses (a) and (b) above, so long as no Event of the average net income per share Default has occurred and is continuing, Borrower may repurchase and redeem (including for cash or for shares of the Company for the four quarters ended immediately prior to the payment common stock of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2Plug Power), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fractionand may make cash payments with respect to, the numerator of which shall be the current per share market price of the Series D Preferred Shares (Stock, in each case, so long as determined pursuant such cash payments do not to Section 11.4) on such record date, less the fair market value (as determined exceed $20,000,000 in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of (or such higher amounts as the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and Lender may approve in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixedwriting).

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case 1. On each June 30 and December 31 while the Agreement is in effect, the Optionee shall be paid a lump sum distribution in cash equal to the balance credited to his Cash Sub-Account and such balance shall be reduced to zero. 2. The Optionee shall receive a distribution of his Account as soon as practicable following the earliest of (a) his termination of employment with the Company shall fix a record date for any reason, whether voluntary or involuntary (with or without cause), (b) the making of a distribution to all holders expiration of the Preferred Shares Deferral Period or (including any such distribution made c) a Change in connection with a consolidation Control. 3. In the event of the death or merger in Disability of the Optionee, the Optionee's Account shall be paid to the Optionee's Beneficiary or guardian (as the case may be) within 30 days following the date on which the Company is notified or otherwise determines that such event has occurred. 4. Distributions from the continuing Optionee's Account shall be made in a single lump sum payment unless the Optionee elects to receive such payment in the form of annual installment payments over a three (3) or surviving corporationfive (5) of evidences of indebtednessyear period. Any election to receive installment payments must be made in writing (in accordance with rules established by the Administrator) at least six (6) months prior to the date on which the payment is due to be made. Notwithstanding the foregoing, cash, securities or assets (other than any remaining installment payments shall be accelerated and paid in a regular periodic cash dividend at a rate not single payment in excess of 125% the event of the rate death of the last regular periodic cash dividend theretofore paid orOptionee, a Change in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share Control of the Company or the Optionee's involuntary termination of employment from the Company. All payments under the Agreement (except for the four quarters ended immediately prior to semi-annual distributions from the payment Cash Sub-Account described in paragraph 1 above) shall be in the form of such dividend, or a dividend payable Common Shares of the class covered by the Option (with any fractional shares being paid in Preferred Shares (which dividend, for purposes cash). 5. Notwithstanding the foregoing provisions of this AgreementArticle V, if the deduction of all or any portion of a payment or distribution otherwise due to be made by the Company under the Agreement would be disallowed solely by reason of Code Section 162(m) but for the operation of this paragraph, then such payment or distribution (or portion thereof) shall be deferred and made at the earliest time that Section 162(m) would not apply to disallow the corresponding deduction by the Company. 6. Distributions under the Agreement shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants all applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixedwithholding taxes.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such convertible securities, subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDEDprovided, HOWEVERhowever, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Series A Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Series A Preferred Shares (which dividend, for purposes of this AgreementPlan, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the then current per share market price of the Series A Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the CompanyBoard, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one share of Series A Preferred Share and the denominator of which shall be such then current per share market price of the Series A Preferred Shares (as determined pursuant to Section 11.4); PROVIDEDprovided, HOWEVERhowever, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which that would then be in effect if such record date had not been fixed.

Distributions. In case the Company Borrower shall fix a record payment date for the making of a distribution to all holders of the Preferred Shares Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company Borrower is the continuing or surviving corporation) of evidences of indebtedness, cash, securities indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not or cash distributions payable out of consolidated earnings or earned surplus or dividends or distributions referred to in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes subsection C of this Agreement, shall be subject to the provisions of Section 11.1.1(AArticle VII))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2)warrants, the Purchase Conversion Price to be in effect after such record payment date shall be determined by multiplying the Purchase Conversion Price in effect immediately prior to such record payment date by a fraction, the numerator of which shall be the current total number of shares of Common Stock outstanding multiplied by the Closing Sales Price (as defined below) per share market price of the Preferred Shares (as determined pursuant Common Stock immediately prior to Section 11.4) on such record payment date, less the fair market value (as determined in good faith by the Borrower’s Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agentgood faith) of the portion of the cash, assets, securities said assets or evidences of indebtedness so to be distributed distributed, or of such subscription rights or warrants applicable to one Preferred Share warrants, and the denominator of which shall be the total number of shares of Common Stock outstanding multiplied by such current Closing Sales Price per share market price of the Preferred Shares (as determined pursuant Common Stock immediately prior to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Rightsuch payment date. Such adjustments adjustment shall be made successively whenever such a record payment date is fixed; .” 7. The provisions of Article VIII.C(iii) of the Series A Notes are hereby deleted in their entirety and replaced with the following: “(iii) redeem, repurchase or otherwise acquire, or declare or pay any cash dividend or distribution on, any securities of the Borrower, except pursuant to any equity compensation plan approved by the Borrower’s Board of Directors or as expressly required by the terms of the Series A Notes or the Series B Notes;” 8. The provisions of Article XI.L of the Series A Notes are hereby deleted in their entirety and replaced with the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.following:

Distributions. In case If after the date hereof the Company shall fix a record date for the making of a distribution distribute to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) its shares of Common Stock evidences of indebtedness, cash, securities its indebtedness or assets (other than excluding cash distributions made as a regular periodic cash dividend at a rate not in excess payable out of 125% earnings or out of surplus legally available for dividends under the laws of the rate jurisdiction of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share incorporation of the Company and excluding Qualified Asset Sale Distributions) or rights to subscribe for shares of Common Stock expiring at least thirty (30) calendar days after the four quarters ended immediately prior to the payment of such dividend, issuance thereof (excluding any dividend or a dividend other distribution payable in Preferred Shares shares of Common Stock for which adjustment is made under Section 6(a)), then in each such case (which dividend, i) the Exercise Price in effect on the trading day immediately following the close of business on the record date for purposes of this Agreement, such distribution shall be subject decreased to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be an amount determined by multiplying the Purchase such Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be is the current Market Price of a share of Common Stock on the trading day immediately prior to the Ex- Date less the Market Price of the assets or evidences of indebtedness so distributed or of such subscription rights per share market price of Common Stock outstanding on the trading day immediately prior to the Ex-Date (determined for such purpose on the basis of the Preferred Shares aggregate assets, evidences of indebtedness and/or rights distributed with respect to one share of Common Stock as if, for purposes of the definition of “Market Price”, such assets, evidences of indebtedness and/or rights were an “Other Security” as defined herein) (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive, and described in a statement filed with the Rights Warrant Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per is the Market Price of a share market price of Common Stock on the Preferred Shares trading day immediately prior to the Ex-Date and (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall ii) the consideration to be paid number of shares of Common Stock purchasable upon the exercise of one Right any Warrant after such event shall be less than the aggregate par value number of the shares of capital stock Common Stock obtained by multiplying the number of shares of Common Stock purchasable immediately prior to such adjustment upon the Company to be issued upon exercise of one Rightsuch Warrant by the Exercise Price in effect immediately prior to such adjustment and dividing the product so obtained by the Exercise Price in effect after such adjustment. Such adjustments shall be made successively by the Company whenever such a record date is fixed; and in the event that any such distribution is not so made, and shall become effective retroactively on the Purchase Price shall again be adjusted to be date immediately after the Purchase Price which would then be in effect if such record date had not been fixedfor the determination of stockholders entitled to receive such distribution.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Series A Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the then-current per share market price of the Series A Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the CompanyBoard, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one share of Series A Preferred Share and the denominator of which shall be such then-current per share market price of the Series A Preferred Shares (as determined pursuant to Section 11.4); PROVIDEDprovided, HOWEVERhowever, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which that would then be in effect if such record date had not been fixed.

Distributions. In case (a) Make any distribution or declare or pay any dividends (in cash or other property, other than common Stock) on, or purchase, acquire, redeem or retire any of Holdings’ or Borrower’s Stock, of any class, whether now or hereafter outstanding, other than (i) Subsidiaries of Holdings may make distributions to Holdings, in an aggregate amount not to exceed $1,000,000 in any calendar year, the Company shall fix proceeds of which will be used in full by Holdings, within 5 Business Days of receipt thereof from such Subsidiaries, to repurchase Stock previously issued by Holdings to employees of Holdings or any of its Subsidiaries (or such employees’ heirs or decedents) in connection with the termination of the employment of such employees; provided, that (x) no Event of Default exists at the time of such distribution or repurchase or would occur as a record date for result thereof, and (y) immediately before and after giving effect to the making of such distribution and repurchase, Borrower shall be in compliance on a pro forma basis with the covenants set forth in Section 7 recomputed for the most recently ended fiscal quarter for which information is available (provided that such condition required by this clause (y) shall not be applicable if immediately before and after giving effect to the making of such distribution to all holders and repurchase (A) Average Availability for each month during the previous 3 month period is greater than $25,000,000 and (B) Excess Availability plus Qualified Cash is greater than $25,000,000 as of the Preferred Shares last day of each of the previous 3 months), (including any ii) Subsidiaries of Holdings may make distributions to Holdings, the proceeds of which will be used in fully by Holdings, within 5 Business Days of receipt thereof from such distribution made Subsidiaries, to make payments in respect of fractional shares of common Stock of Holdings in connection with a consolidation any reverse stock split of Holdings’ common Stock in an aggregate amount not to exceed $250,000 in any calendar year, (iii) Subsidiaries of Holdings may make distributions to Holdings, the proceeds of which will be used in full by Holdings, within 5 Business Days of receipt thereof from such Subsidiaries, to make payments in respect of fractional shares of common Stock of Holdings in connection with the conversion of Holdings’ Series A Convertible Preferred Stock or merger the exercise of warrants to purchase Shares of Holdings’ common Stock in an aggregate amount not to exceed $250,000 in any calendar year, (iv) Subsidiaries of Holdings may make distributions to Holdings, the proceeds of which promptly will be used in full by Holdings to pay operating expenses of Holdings incurred in the Company is ordinary course of business and consistent with the continuing or surviving corporationpermitted business activities of Holdings described in Section 6.15 and, with respect to proceeds of distributions by Domestic Subsidiaries of Holdings to Holdings, solely to the extent that such expenses are incurred on behalf of any Foreign Subsidiary of Holdings, (v) Subsidiaries of evidences Holdings may make distributions to Holdings, the proceeds of indebtedness, cash, securities or assets which will immediately be used by Holdings to make (other than a regular periodic A) regularly scheduled interest payments on the Convertible Notes and (B) cash dividend at a rate not in excess of 125% payments solely with respect to fractional shares converted pursuant to the terms of the rate Convertible Notes; provided, that in each case (x) no Event of Default exists at the time of such distribution or would occur as a result thereof, and (y) immediately before and after giving effect to the making of such distribution, Borrower shall be in compliance on a pro forma basis with the covenants set forth in Section 7 recomputed for the most recently ended fiscal quarter for which information is available (provided that such condition required by this clause (y) shall not be applicable if immediately before and after giving effect to the making of such distribution and repurchase (A) Average Availability for each month during the previous 3 month period is greater than $25,000,000 and (B) Excess Availability plus Qualified Cash is greater than $25,000,000 as of the last regular periodic cash dividend theretofore paid orday of each of the previous 3 months), (vi) wholly-owned Domestic Subsidiaries of Borrower may make distributions to Borrower and other wholly-owned Foreign Subsidiaries of Holdings may make distributions to Holdings and other wholly-owned Subsidiaries of Holdings; in each case, with respect to clause (i), (ii), (iii), (iv), (v), (vi) and (vii) above provided further that such distributions, repurchases and payments are permitted pursuant to the terms of the Convertible Notes. (b) Cause, permit, or suffer, directly or indirectly, and “change of control” (or other similar event) as defined in, or under, any of (i) the Convertible Notes, or any agreement, document or instrument entered in connection therewith, (ii) any other Indebtedness of Holdings, Borrower or any of their respective Subsidiaries involving an aggregate amount of $2,500,000 or more or (iii) any of the terms pertaining to any of the Stock of Holdings, in each case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment extent that such “change of control” (or other similar event) would require, or would entitle the holder of such dividendIndebtedness or Stock to require, Holdings, Borrower or a dividend payable in Preferred Shares any of their respective Subsidiaries to (which dividend, for purposes x) make any payments of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior any kind with respect to such record date Indebtedness or Stock or (y) make any distribution, declaration, payment, purchase, acquisition, redemption or retirement prohibited by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.46.10(a); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Preferred Common Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Common Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A)) hereof)) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Common Shares (as determined pursuant to defined in Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Common Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one RightCommon Shares. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Series A Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Series A Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the then current per share market price of the Series A Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the CompanyBoard, whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposes on the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one share of Series A Preferred Share and the denominator of which shall be such current per share market price of the Series A Preferred Shares (as determined pursuant to Section 11.4); PROVIDEDprovided, HOWEVERhowever, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which that would then be in effect if such record date had not been fixed.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Series B Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Series B Preferred Shares (which dividend, for purposes of this AgreementPlan, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the then current per share market price of the Series B Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the CompanyBoard, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one share of Series B Preferred Share and the denominator of which shall be such then-current per share market price of the Series B Preferred Shares (as determined pursuant to Section 11.4); PROVIDEDprovided, HOWEVERhowever, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which that would then be in effect if such record date had not been fixed.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Class A Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Class A Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price Current Per Share Market Price of the Class A Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Class A Preferred Share and the denominator of which shall be such current per share market price Current Per Share Market Price of the Class A Preferred Shares (as determined pursuant to Section 11.4); PROVIDEDprovided, HOWEVERhowever, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case the Company shall fix a record ------------- date for the making of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A)) hereof)) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to defined in Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one RightShares. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case If after the date hereof the Company shall fix distribute to all holders of its shares of Common Stock evidences of its indebtedness, shares of another class of capital stock ("Other Securities"), assets (excluding cash distributions made as a dividend payable out of the lesser of the undistributed earnings for the fiscal year during which the dividend is declared and the retained earnings of the Company) or rights to subscribe to shares of Common Stock, then in each such case, unless the Company elects to reserve such indebtedness, assets, rights or shares for distribution to each holder of a Warrant upon the exercise of the Warrants so that such holder will receive upon such exercise, in addition to the shares of Common Stock to which such holder is entitled, the amount and kind of such indebtedness, assets, rights or shares which such holder would have received if such holder had, immediately prior to the record date for the making distribution of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cashassets, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2)shares, exercised the Warrants and received Common Stock, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Exercise Price in effect immediately prior to such record date distribution shall be decreased to an amount determined by multiplying such Exercise Price by a fraction, the numerator of which shall be is the current per Fair Value of a share market price of the Preferred Shares (as determined pursuant to Section 11.4) on Common Stock at the date of such record date, distribution less the fair market value (as determined in good faith by the Board of Directors Fair Value of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed indebtedness, Other Securities, assets or of such subscription rights or warrants applicable to one Preferred Share as the case may be, so distributed and the denominator of which shall be is the Fair Value of a share of Common Stock at such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Rightdate. Such adjustments adjustment shall be made successively whenever such a record date is fixed; and in the event that any such distribution is not so made, and shall become effective retroactively on the Purchase Price shall again be adjusted to be date immediately after the Purchase Price which would then be in effect if such record date had not been fixedfor the determination of stockholders entitled to receive such distribution.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Preferred Shares Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities its indebtedness or assets (other than a regular periodic including cash, cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid ordividends, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible and securities, or subscription rights or warrants but excluding (excluding those i) dividends referred to in Section 11.28(a), (ii) distributions referred to in Section 8(c) and (iii) cash dividends out of surplus of the Company), the Purchase Price to be in effect number of shares of Common Stock purchasable upon exercise of each Warrant after such record date shall be determined adjusted to equal the product obtained by multiplying the Purchase Price in effect number of shares of Common Stock purchasable upon an exercise of the Warrants immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant Stated Purchase Price immediately prior to Section 11.4) on such record datedistribution, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be the Stated Purchase Price immediately prior to such current distribution less the fair market value per share market price as determined by an investment banking firm other than one of the Preferred Shares Holders that is reasonably acceptable to the Holders (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration cost of the engagement of said investment banking firm to be paid upon borne by the exercise of one Right be less than the aggregate par value Company) of the shares of capital stock portion of the Company to be issued upon exercise assets or evidences of one Rightindebtedness so distributed. Such adjustments adjustment shall be made successively whenever any such a distribution is made and shall become effective on the date of distribution retroactive to the record date is fixed; and in for the event that determination of stockholders entitled to receive such distribution. If such distribution is not so made, the Purchase Price number of shares of Common Stock into which each Warrant is exercisable shall again be adjusted to be the Purchase Price which would then be such number of shares of Common Stock in effect if such record date the distribution had not been fixedmade.

Distributions. In case If, at any time this Warrant is outstanding, the Company shall fix fixes a record date for the making of a dividend or other distribution to all holders (by spin-off or otherwise) on shares of Class A Common Stock, whether in cash, Equity Interests of the Preferred Shares Company, other securities of the Corporation, evidences of indebtedness of the Company or any other Person or any other property (including Equity Interests, other securities or evidences of indebtedness of a Subsidiary), or any such distribution made combination thereof, excluding (i) dividends or distributions subject to adjustment pursuant to Section 3(a) or (ii) dividends or distributions of rights in connection with the adoption of a consolidation or merger stockholder rights plan in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets customary form (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior including with respect to the payment receipt of such dividendrights in respect of shares of Class A Common Stock (including Warrant Shares) issued subsequent to the initial dividend or distribution of such rights), or a dividend payable then in Preferred each such case, the number of Warrant Shares (which dividend, for purposes issuable upon exercise of this Agreement, Warrant in full shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined increased by multiplying the Purchase Price in effect immediately prior to such record date number of Warrant Shares by a fraction, the numerator of which shall be is the current VWAP per share market price of Class A Common Stock on such record date and the denominator of which is the VWAP per share of Class A Common Stock on such record date less the Fair Market Value of the Preferred cash and/or any other property, as applicable, to be so paid or distributed in such dividend or distribution in respect of one share of Class A Common Stock (in each ca se as of the record date of such dividend or distribution); such adjustment shall take effect on the record date for such dividend or distribution. In the event of such adjustment, the Exercise Price shall immediately be decreased or at such later date as the Board of Directors may determine for purposes of the determination of Fair Market Value (but in any event not later than 10 Business Days after the first date on which the Class A Common Stock trades regular way on the principal national securities exchange on which the Class A Common Stock is listed or admitted to trading without the right to receive such distribution) by multiplying such Exercise Price by a fraction, the numerator of which is the number of Warrant Shares issuable upon the exercise of this Warrant in full immediately prior to such adjustment, and the denominator of which is the new number of Warrant Shares issuable upon exercise of this Warrant determined in accordance with the immediately preceding sentence. Notwithstanding the foregoing, in the event that the Fair Market Value of the cash and/or any other property, as applicable, to be so paid or distributed in such dividend or distribution in respect of one share of Class A Common Stock (in each case as determined pursuant of the record date of such dividend or distribution) is equal to Section 11.4) or greater than the VWAP per share of Class A Common Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination then proper provision shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of made such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments this Warrant, the Holder shall be made successively whenever receive, in addition to the applicable Warrant Shares, the amount and kind of such a cash and/or any other property such Holder would have received had such Holder exercised this Warrant immediately prior to such record date is fixed; and (disregarding whether or not this Warrant had been exercisable by its terms at such time). For purposes of the foregoing, in the event that such dividend or distribution in question is ultimately not so made, the Purchase Exercise Price and the number of Warrant Shares issuable upon exercise of this Warrant then in effect shall again be adjusted readjusted, effective as of the date when the Board of Directors determines not to be make such dividend or distribution, to the Purchase Exercise Price which that would then be in effect and the number of Warrant Shares that would then be issuable upon exercise of this Warrant if such record date had not been fixed. For the avoidance of doubt, no increase to the Exercise Price or decrease in the number of Warrant Shares issuable upon exercise of this Warrant shall be made pursuant to this Section 3(c).

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Series A Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Series A Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect effect after such record date shall be determined by multiplying the Purchase Price in effect effect immediately prior to such record date by a fraction, the numerator of which shall be the then current per share market price of the Series A Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the CompanyBoard, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one share of Series A Preferred Share and the denominator of which shall be such current per share market price of the Series A Preferred Shares (as determined pursuant to Section 11.4); PROVIDEDprovided, HOWEVERhowever, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which that would then be in effect effect if such record date had not been fixed.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Series D Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Series D Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the then current per share market price of the Series D Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the CompanyBoard, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one share of Series D Preferred Share and the denominator of which shall be such then-current per share market price of the Series D Preferred Shares (as determined pursuant to Section 11.4); PROVIDEDprovided, HOWEVERhowever, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which that would then be in effect if such record date had not been fixed.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Series A Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Series A Preferred Shares (which dividend, for purposes of this AgreementPlan, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the then current per share market price of the Series A Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the CompanyBoard, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one share of Series A Preferred Share and the denominator of which shall be such then- current per share market price of the Series A Preferred Shares (as determined pursuant to Section 11.4); PROVIDEDprovided, HOWEVERhowever, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which that would then be in effect if such record date had not been fixed.

Distributions. In case (a) Subject to Section 9.6, as and when a Product Payment is required to be made pursuant to Section 2.1(d), the Buyer shall, within the time period provided in Section 2.1(d) or 2.5, as applicable, take the following actions with respect to such Product Payment: (i) if less than an aggregate of [####] has previously been paid to Wyeth LLC, a Delaware limited liability company formerly known as Wyeth (“Wyeth”) pursuant to the License Agreement dated March 15, 2004, between Wyeth and Cardiokine Biopharma, LLC, an Affiliate of the Company, as such agreement has been amended on or prior to the Effective Time (the “Wyeth License”), then the Surviving Corporation shall instead pay to Wyeth pursuant to the Wyeth License an amount equal to the lesser of (A) the amount by which [####] exceeds the aggregate amounts previously paid to Wyeth pursuant to the Wyeth License as contemplated by this Section 2.6(a)(i) or (B) the amount of such Product Payment, and such Product Payment shall be reduced by such amount in clause (A) or (B), as applicable (as reduced, the “Post-Wyeth Product Payment”); (ii) once [####] has been paid to Wyeth as contemplated by Section 2.6(a)(i), the Surviving Corporation shall (A) first, pay to ▇.▇. ▇▇▇▇▇▇ Securities, Inc. (“JPM”) any amount owed to JPM pursuant to the engagement letter between JPM and the Company as in effect at the Effective Time (the “JPM Engagement Letter”) as a result of the payment of Post-Wyeth Product Payment and (B) second, pay to the Bonus Plan Participants such respective portions of such Post-Wyeth Product Payment as the Bonus Plan Participants are entitled to receive (taking into account the aggregate amount any previous payments to the Bonus Plan Participants and any previously paid Net Equityholder Distribution Amounts) pursuant to the terms of the Bonus Plans, copies of which are attached to Section 3.2(f) of the Disclosure Schedule, and such Post-Wyeth Product Payment shall fix a record date be reduced by such amounts paid in clauses (A) and (B) above (as reduced, the “Post-Bonus Plan Product Payment”) and (c) third, pay the Post-Bonus Plan Product Payment, subject to Section 2.7, to the party or account designated by the Indemnification Representative, for further distribution to the Company Participating Equityholders in accordance with Section 2.6(b); (iii) after the Buyer or the Surviving Corporation has paid to the party or account designated by the Indemnification Representative any amount required to be so paid pursuant to Section 2.6(a)(ii), the Buyer and the Surviving Corporation shall have no liability whatsoever to the Company Participating Equityholders for such payment, nor shall the Buyer or the Surviving Corporation have any further liability whatsoever in respect of the payments to the Company Participating Equityholders contemplated by Section 2.6(b); and (iv) for the making sake of a distribution clarity, the parties hereto recognize and acknowledge that any payments to all Wyeth, JPM or the Bonus Plan Participants contemplated by this Section 2.6(a) are being paid pursuant to the terms of the Company’s pre-existing contractual obligations to such parties that were entered into in the ordinary course of the Company’s business and not as consideration to the holders of Company Stock and Company Options being paid under this Agreement. (b) Subject to Section 2.3(d), any payment made to the Preferred Shares party or account designated by the Indemnification Representative pursuant to Sections 2.1(e), 2.1(f), 2.6(a)(ii) or 6.10(c) (including any such distribution made in connection with payment, a consolidation or merger in which “Net Equityholder Distribution Amount”) shall be distributed as directed by the Indemnification Representative to the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets Participating Equityholders (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid orBonus Plan Participants) as follows (provided, in case regular periodic cash dividends have not theretofore been paidhowever, at a rate not in excess of 50% of the average net income per share that any payments to employees or former employees of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, employment tax withholding is required shall be subject delivered to Buyer or the provisions of Section 11.1.1(A))Surviving Corporation with explicit instructions as to whom the amounts should be paid for payment through Buyer or the Surviving Corporation’s payroll processing service or system): (i) or convertible securitiesif an amount less than the aggregate Series B Liquidation Amount (as defined in, or subscription rights or warrants (excluding those referred to in Section 11.2)and calculated pursuant to, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price Company’s Certificate of Incorporation as in effect immediately prior to the Effective Time) (such record date by a fractionaggregate amount, the numerator “Series B Liquidation Preference”) has previously been paid to the holders of which Company Series B Convertible Preferred Stock, then the Indemnification Representative shall cause to be the current per share market price paid to each holder of Company Series B Convertible Preferred Stock his, her or its Series B Pro Rata Share of the lesser of (x) the amount by which the Series B Liquidation Preference exceeds the aggregate amounts previously paid to the holders of Company Series B Convertible Preferred Shares Stock pursuant to this Section 2.6(b)(i) or (as determined y) the total amount of such Net Equityholder Distribution Amount; and (ii) if the total amount of such Net Equityholder Distribution Amount exceeds the amount, if any, required to be paid to the holders of Series B Convertible Preferred Stock pursuant to Section 11.42.6(b)(i)) on (any such record dateexcess amount, less the fair market value (as determined in good faith by the Board of Directors of the Companya “Post-Series B Distribution Amount”), whose determination then such Post-Series B Distribution Amount shall be described in a statement filed with paid to the Rights Agent) holders of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share Company Stock and the denominator holders of which shall be such current per share market price of the Preferred Shares Company Options, as applicable, as follows: (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be A) if less than the aggregate par value Series A Liquidation Amount (as defined in, and calculated pursuant to, the Company’s Certificate of Incorporation as in effect immediately prior to the Effective Time) (such aggregate amount, the “Series A Liquidation Preference”) has previously been paid to the holders of Company Series A Convertible Preferred Stock, then the Indemnification Representative shall cause to be paid to each holder of Company Series A Convertible Preferred Stock his, her or its Series A Pro Rata Share of the shares lesser of capital stock (x) the amount by which the Series A Liquidation Preference exceeds the aggregate amounts previously paid to the holders of Company Series A Convertible Preferred Stock pursuant to this Section 2.6(b)(ii)(A) or (y) the total amount of such Post-Series B Distribution Amount; and (B) if the total amount of such Post-Series B Distribution Amount exceeds the amount, if any, required to be paid to the holders of Company Series A Convertible Preferred Stock pursuant to Section 2.6(b)(ii)(A) (any such excess amount, a “Participation Amount”), then the Indemnification Representative shall cause to be paid to each holder of Company Stock and, subject to the last sentence of this Section 2.6(b)(ii)(B), each holder of a Company Option, his, her or its Participating Pro Rata Share of such Participation Amount. Payments to each holder of a Company Option pursuant to Section 2.6(b)(ii)(B) shall be reduced by the amount of the applicable exercise price of such Company Option until the aggregate exercise price of such Company Option has been satisfied in full, with each Company Option held by such holder considered separately for purposes of this calculation. Any amount deducted from a payment to a holder of a Company Option pursuant to the immediately preceding sentence shall be added to the aggregate Participation Amount distributed pursuant to this Section 2.6(b)(ii)(B) in connection with the same Product Payment with respect to which such deduction is made. (c) The right of the Company Participating Equityholders to receive any payment pursuant to this Section 2.6: (i) is solely a contractual right and is not a security for purposes of any federal or state securities Laws; (ii) will not be issued upon exercise represented by any form of one Right. Such adjustments shall be made successively whenever such a record date is fixedcertificate or instrument; and in (iii) does not give the event that such distribution is not so madeCompany Participating Equityholders any dividend rights, voting rights, liquidation rights, preemptive rights or other rights common to holders of the Purchase Price shall again be adjusted to be equity securities of the Purchase Price which would then be in effect if such record date had not been fixedSurviving Corporation or its Affiliates.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities securities, or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid paid, or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A)) hereof)) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to defined in Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities securities, or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one RightShares. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A11.1.1(i))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights AgentAgent and shall be binding on the Rights Agent and the holders of the Rights) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price Current Per Share Market Price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the CompanyDirectors, whose determination shall be described in a statement filed with the Rights AgentAgent and shall be conclusive for all purposes) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price Current Per Share Market Price of the Preferred Shares (as determined pursuant to Section 11.4)Shares; PROVIDEDprovided, HOWEVERhowever, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. The parties agree to the following distributions: (a) In case recognition of changes in distribution restrictions imposed by lenders to the Company LLC, the parties hereto agree that they shall fix a record cause Energy and WMI to approve monthly distributions of cash by the LLC to its members from the date for hereof through the making Closing equal to the aggregate amount of a distribution net income (adjusted to all holders disregard unrealized gains and losses resulting from the marked to market forward positions as of the Preferred Shares end of each month) of the LLC for each month beginning on May 1, 2000 and ending on the close of business on the date preceding the Closing, that have not been previously distributed and that can be distributed from the cash flow of the LLC subsequent to April 30, 2000 without requiring capital contributions or borrowings (including any the "Ordinary Cash Distributions"). The amount of the Ordinary Cash Distributions shall be estimated by Atmos and WMI in good faith and paid by the LLC within 75 days after the end of each such distribution made month or, in connection with a consolidation or merger the case of the month in which the Company is Closing occurs, within 75 days after the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, Closing. Any true-up adjustments shall be paid as provided in Section 7.2(c), subject to the provisions right of Section 11.1.1(A))WMI, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ (and their respective representatives) or convertible securitiesto review the books and records of the LLC with respect to such calculations. (b) As soon as practicable but not later than seventy-five (75) days following the Closing Date, or subscription rights or warrants Atmos shall prepare and deliver to WMI, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ a certificate showing the calculation of the Ordinary Cash Distributions of the LLC through the close of business on the date preceding the Closing Date (excluding those referred to in Section 11.2"Actual Amount"), together with reasonably detailed substantiation therefor. In the Purchase Price to absence of notice of objection or exercise of review rights within ninety (90) days after the delivery of such certificate and substantiation, the amount reflected in such certificate will be in effect deemed accepted. In the event ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ dispute the certificate, they shall provide written notification of objection within such ninety (90) day period (or, if a review is requested, within sixty (60) days after commencement of such review and, for a period of thirty (30) days after such record date notification (or expiration of such sixty (60) day period, as the case may be), ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ and Atmos shall be determined by multiplying attempt to resolve the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined dispute in good faith by the Board of Directors mutual agreement. If a review is requested, Atmos agrees to cooperate in good faith to facilitate such review of the Companybooks and records of the LLC. When the parties are in agreement, whose determination any adjustment to the payment shall be described in a statement filed with calculated and, prior to the Rights Agent) end of the portion of the cashnext calendar month, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixedpaid.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock Shares of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) hereof) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to defined in Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one RightShares. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case If, at any time after the Issue Date, the Company declares or makes any distribution of cash or any other assets (or rights to acquire such assets) to holders of Common Stock, including without limitation any dividend or distribution to the Company’s stockholders in shares (or rights to acquire shares) of capital stock of a subsidiary) (a “Distribution”), the Company shall fix deliver written notice of such Distribution (a “Distribution Notice”) to the Holder at least fifteen (15) days prior to the earlier to occur of (i) the record date for determining stockholders entitled to such Distribution (the making “Record Date”) and (ii) the date on which such Distribution is made (the “Distribution Date”) (the earlier of such dates being referred to as the “Determination Date”). Upon receipt of the Distribution Notice, the Holder shall promptly (but in no event later than three (3) Business Days) notify the Company whether it has elected (A) to receive the same amount and type of assets (including, without limitation, cash) being distributed as though the Holder were, on the Determination Date, a holder of a distribution to all holders number of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in shares of Common Stock into which the Company this Warrant is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment exercisable as of such dividend, Determination Date (such number of shares to be determined without giving effect to any limitations on such exercise) or a dividend payable in Preferred Shares (which dividend, for purposes B) upon any exercise of this AgreementWarrant on or after the Distribution Date, shall be subject to reduce the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Exercise Price in effect on the Business Day immediately prior preceding the Record Date by an amount equal to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (of the assets to be distributed divided by the number of shares of Common Stock as to which such Distribution is to be made, such fair market value to be reasonably determined in good faith by the Board of Directors independent members of the Company’s Board of Directors. Upon receipt of such election notice from the Holder, whose determination the Company shall timely effectuate the transaction or adjustment contemplated in the foregoing clause (A) or (B), as applicable. If the Holder does not notify the Company of its election pursuant to the preceding sentence on or prior to the Determination Date, the Holder shall be described in a statement filed with the Rights Agentdeemed to have elected clause (A) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixedpreceding sentence.

Distributions. In case Make any distribution or declare or pay any ------------- dividends (in cash or other property, other than Stock) on, or purchase, acquire, redeem, or retire any of Borrower's Stock, of any class, whether now or hereafter outstanding, or pay any management fees; provided, however, so long as -------- ------- no Default or Event of Default exists on the Company shall fix a record date for the making of a distribution to all holders of the Preferred Shares (including any such distribution made or immediately after giving effect thereto, and Borrower demonstrates to the reasonable satisfaction of Agent that Excess Availability will be at least $1,000,000 after giving effect to such distribution, Borrower may from time to time during or following the end of any fiscal quarter during which Borrower was a Pass-Through Entity, distribute to its respective equity holders in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate an amount not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company Tax Distribution Amount for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or fiscal year during the end of such subscription rights or warrants applicable to one Preferred Share and fiscal quarter, minus the denominator aggregate amount of which shall be any such current per share market price distributions therefor made in respect of the Preferred Shares (as determined pursuant to Section 11.4)such fiscal year; PROVIDEDprovided, HOWEVERhowever, that in no event shall the consideration amount so distributed in respect of any fiscal year exceed the actual amount of federal and state income taxes for such year solely attributable to be paid upon the exercise ownership of one Right be less than the aggregate par value Borrower's equity interest. The amount of any distribution of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments Tax Distribution Amount under this Section shall be made successively whenever such a record date is fixed; verified by the chief financial officer of Borrower in the certificate required under Section 6.3 and in the event that such distribution written statement required of Borrower's ----------- accountants under Section 6.3." ----------- (f) Amendment to Section 7.17 of the Loan Agreement. Section 7.17 of ----------------------------------------------- the Loan Agreement, "Use of Proceeds," is not so made, hereby amended and modified by --------------- deleting Section 7.17 in its entirety and substituting the Purchase Price shall again be adjusted to be the Purchase Price which would then be following in effect if such record date had not been fixed.lieu thereof:

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price Current Per Share Market Price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price Current Per Share Market Price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDEDprovided, HOWEVERhowever, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Junior Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Junior Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the then current per share market price of the Junior Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the CompanyBoard, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one share of Junior Preferred Share and the denominator of which shall be such current per share market price of the Junior Preferred Shares (as determined pursuant to Section 11.4); PROVIDEDprovided, HOWEVERhowever, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which that would then be in effect if such record date had not been fixed.

Distributions. In case (a) Subject to Section 9.6, as and when a Product Payment is required to be made pursuant to Section 2.1(d), the Buyer shall, within the time period provided in Section 2.1(d) or 2.5, as applicable, take the following actions with respect to such Product Payment: (i) if less than an aggregate of $20,000,000 has previously been paid to Wyeth LLC, a Delaware limited liability company formerly known as Wyeth (“Wyeth”) pursuant to the License Agreement dated March 15, 2004, between Wyeth and Cardiokine Biopharma, LLC, an Affiliate of the Company, as such agreement has been amended on or prior to the Effective Time (the “Wyeth License”), then the Surviving Corporation shall instead pay to Wyeth pursuant to the Wyeth License an amount equal to the lesser of (A) the amount by which $20,000,000 exceeds the aggregate amounts previously paid to Wyeth pursuant to the Wyeth License as contemplated by this Section 2.6(a)(i) or (B) the amount of such Product Payment, and such Product Payment shall be reduced by such amount in clause (A) or (B), as applicable (as reduced, the “Post-Wyeth Product Payment”); (ii) once $20,000,000 has been paid to Wyeth as contemplated by Section 2.6(a)(i), the Surviving Corporation shall (A) first, pay to ▇.▇. ▇▇▇▇▇▇ Securities, Inc. (“JPM”) any amount owed to JPM pursuant to the engagement letter between JPM and the Company as in effect at the Effective Time (the “JPM Engagement Letter”) as a result of the payment of Post-Wyeth Product Payment and (B) second, pay to the Bonus Plan Participants such respective portions of such Post-Wyeth Product Payment as the Bonus Plan Participants are entitled to receive (taking into account the aggregate amount any previous payments to the Bonus Plan Participants and any previously paid Net Equityholder Distribution Amounts) pursuant to the terms of the Bonus Plans, copies of which are attached to Section 3.2(f) of the Disclosure Schedule, and such Post-Wyeth Product Payment shall fix a record date be reduced by such amounts paid in clauses (A) and (B) above (as reduced, the “Post-Bonus Plan Product Payment”) and (c) third, pay the Post-Bonus Plan Product Payment, subject to Section 2.7, to the party or account designated by the Indemnification Representative, for further distribution to the Company Participating Equityholders in accordance with Section 2.6(b); (iii) after the Buyer or the Surviving Corporation has paid to the party or account designated by the Indemnification Representative any amount required to be so paid pursuant to Section 2.6(a)(ii), the Buyer and the Surviving Corporation shall have no liability whatsoever to the Company Participating Equityholders for such payment, nor shall the Buyer or the Surviving Corporation have any further liability whatsoever in respect of the payments to the Company Participating Equityholders contemplated by Section 2.6(b); and (iv) for the making sake of a distribution clarity, the parties hereto recognize and acknowledge that any payments to all Wyeth, JPM or the Bonus Plan Participants contemplated by this Section 2.6(a) are being paid pursuant to the terms of the Company’s pre-existing contractual obligations to such parties that were entered into in the ordinary course of the Company’s business and not as consideration to the holders of Company Stock and Company Options being paid under this Agreement. (b) Subject to Section 2.3(d), any payment made to the Preferred Shares party or account designated by the Indemnification Representative pursuant to Sections 2.1(e), 2.1(f), 2.6(a)(ii) or 6.10(c) (including any such distribution made in connection with payment, a consolidation or merger in which “Net Equityholder Distribution Amount”) shall be distributed as directed by the Indemnification Representative to the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets Participating Equityholders (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid orBonus Plan Participants) as follows (provided, in case regular periodic cash dividends have not theretofore been paidhowever, at a rate not in excess of 50% of the average net income per share that any payments to employees or former employees of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, employment tax withholding is required shall be subject delivered to Buyer or the provisions of Section 11.1.1(A))Surviving Corporation with explicit instructions as to whom the amounts should be paid for payment through Buyer or the Surviving Corporation’s payroll processing service or system): (i) or convertible securitiesif an amount less than the aggregate Series B Liquidation Amount (as defined in, or subscription rights or warrants (excluding those referred to in Section 11.2)and calculated pursuant to, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price Company’s Certificate of Incorporation as in effect immediately prior to the Effective Time) (such record date by a fractionaggregate amount, the numerator “Series B Liquidation Preference”) has previously been paid to the holders of which Company Series B Convertible Preferred Stock, then the Indemnification Representative shall cause to be the current per share market price paid to each holder of Company Series B Convertible Preferred Stock his, her or its Series B Pro Rata Share of the lesser of (x) the amount by which the Series B Liquidation Preference exceeds the aggregate amounts previously paid to the holders of Company Series B Convertible Preferred Shares Stock pursuant to this Section 2.6(b)(i) or (as determined y) the total amount of such Net Equityholder Distribution Amount; and (ii) if the total amount of such Net Equityholder Distribution Amount exceeds the amount, if any, required to be paid to the holders of Series B Convertible Preferred Stock pursuant to Section 11.42.6(b)(i)) on (any such record dateexcess amount, less the fair market value (as determined in good faith by the Board of Directors of the Companya “Post-Series B Distribution Amount”), whose determination then such Post-Series B Distribution Amount shall be described in a statement filed with paid to the Rights Agent) holders of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share Company Stock and the denominator holders of which shall be such current per share market price of the Preferred Shares Company Options, as applicable, as follows: (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be A) if less than the aggregate par value Series A Liquidation Amount (as defined in, and calculated pursuant to, the Company’s Certificate of Incorporation as in effect immediately prior to the Effective Time) (such aggregate amount, the “Series A Liquidation Preference”) has previously been paid to the holders of Company Series A Convertible Preferred Stock, then the Indemnification Representative shall cause to be paid to each holder of Company Series A Convertible Preferred Stock his, her or its Series A Pro Rata Share of the shares lesser of capital stock (x) the amount by which the Series A Liquidation Preference exceeds the aggregate amounts previously paid to the holders of Company Series A Convertible Preferred Stock pursuant to this Section 2.6(b)(ii)(A) or (y) the total amount of such Post-Series B Distribution Amount; and (B) if the total amount of such Post-Series B Distribution Amount exceeds the amount, if any, required to be paid to the holders of Company Series A Convertible Preferred Stock pursuant to Section 2.6(b)(ii)(A) (any such excess amount, a “Participation Amount”), then the Indemnification Representative shall cause to be paid to each holder of Company Stock and, subject to the last sentence of this Section 2.6(b)(ii)(B), each holder of a Company Option, his, her or its Participating Pro Rata Share of such Participation Amount. Payments to each holder of a Company Option pursuant to Section 2.6(b)(ii)(B) shall be reduced by the amount of the applicable exercise price of such Company Option until the aggregate exercise price of such Company Option has been satisfied in full, with each Company Option held by such holder considered separately for purposes of this calculation. Any amount deducted from a payment to a holder of a Company Option pursuant to the immediately preceding sentence shall be added to the aggregate Participation Amount distributed pursuant to this Section 2.6(b)(ii)(B) in connection with the same Product Payment with respect to which such deduction is made. (c) The right of the Company Participating Equityholders to receive any payment pursuant to this Section 2.6: (i) is solely a contractual right and is not a security for purposes of any federal or state securities Laws; (ii) will not be issued upon exercise represented by any form of one Right. Such adjustments shall be made successively whenever such a record date is fixedcertificate or instrument; and in (iii) does not give the event that such distribution is not so madeCompany Participating Equityholders any dividend rights, voting rights, liquidation rights, preemptive rights or other rights common to holders of the Purchase Price shall again be adjusted to be equity securities of the Purchase Price which would then be in effect if such record date had not been fixedSurviving Corporation or its Affiliates.

Distributions. In case the Company shall fix a record date for ------------- the making of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDEDprovided, HOWEVERhowever, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A)) hereof)) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to defined in Section 11.411.4.1) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one RightShares. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case If the Company Corporation shall fix a record date for the making of a dividend or other distribution to all holders (by spin-off or otherwise) on shares of Common Stock, whether in cash, Equity Interests of the Preferred Shares Corporation, other securities of the Corporation, evidences of indebtedness of the Corporation or any other Person or any other property (including Equity Interests, other securities or evidences of indebtedness of a subsidiary), or any such distribution made combination thereof, excluding (A) dividends or distributions subject to adjustment pursuant to Section 12(i) or (B) dividends or distributions of rights in connection with the adoption of a consolidation or merger stockholder rights plan in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets customary form (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior including with respect to the payment receipt of such dividendrights in respect of shares of Common Stock (including Warrant Shares) issued subsequent to the initial dividend or distribution of such rights), or a dividend payable then in Preferred each such case, the number of Warrant Shares (which dividend, for purposes issuable upon exercise of this Agreement, Warrant in full (disregarding whether or not this Warrant had been exercisable by its terms at such time) shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined increased by multiplying the Purchase Price in effect immediately prior to such record date number of Warrant Shares by a fraction, the numerator of which shall be is the current Market Price per share market price of Common Stock on such record date and the denominator of which is the Market Price per share of Common Stock on such record date less the Fair Market Value of the Preferred cash and/or any other property, as applicable, to be so paid or distributed in such dividend or distribution in respect of one share of Common Stock (in each case as of the record date of such dividend or distribution); such adjustment shall take effect on the record date for such dividend or distribution. In the event of such adjustment, the Exercise Price shall immediately be decreased by multiplying such Exercise Price by a fraction, the numerator of which is the number of Warrant Shares issuable upon the exercise of this Warrant in full immediately prior to such adjustment (disregarding whether or not this Warrant was exercisable by its terms at such time), and the denominator of which is the new number of Warrant Shares issuable upon exercise of this Warrant determined in accordance with the immediately preceding sentence. Notwithstanding the foregoing, in the event that the Fair Market Value of the cash and/or any other property, as determined pursuant applicable, to Section 11.4be so paid or distributed in such dividend or distribution in respect of one share of Common Stock (in each case as of the record date of such dividend or distribution) is equal to or greater than the Market Price per share of Common Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination then proper provision shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of made such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments this Warrant, the Warrantholder shall be made successively whenever receive, in addition to the applicable Warrant Shares, the amount and kind of such a cash and/or any other property such Warrantholder would have received had such Warrantholder exercised this Warrant immediately prior to such record date is fixed; and (disregarding whether or not this Warrant had been exercisable by its terms at such time). For purposes of the foregoing, in the event that such dividend or distribution in question is ultimately not so made, the Purchase Exercise Price and the number of Warrant Shares issuable upon LA_LAN01:342544.5 exercise of this Warrant then in effect shall again be adjusted readjusted, effective as of the date when the Board of Directors determines not to be make such dividend or distribution, to the Purchase Exercise Price which that would then be in effect and the number of Warrant Shares that would then be issuable upon exercise of this Warrant if such record date had not been fixed. For the avoidance of doubt, no increase to the Exercise Price or decrease in the number of Warrant Shares issuable upon exercise of this Warrant shall be made pursuant to this Section 12(iii). Notwithstanding the foregoing provisions of this Section 12(iii), in the event that all or any portion of any such dividend or other distribution is in Other Voting Securities, then with respect to such dividend or distribution (or such portion thereof that is in Other Voting Securities, as applicable), the Warrantholder shall have the option, exercisable in writing delivered to the Corporation within seven Business Days of such Warrantholder’s receipt of the Corporation’s notice pursuant to Section 12(ix) relating to such dividend or other distribution, to elect (1) for the foregoing adjustments set forth in this Section 12(iii) to apply with respect to such dividend or distribution (or such portion thereof that is in Other Voting Securities, as applicable) or (2) in lieu of the foregoing adjustments set forth in this Section 12(iii) with respect to such dividend or distribution (or such portion thereof that is in Other Voting Securities, as applicable), but, for all purposes of this clause (2), after giving effect to the foregoing adjustments set forth in this Section 12(iii) with respect to any portion of such dividend or distribution that is in securities, cash and/or any other property, in each case other than Other Voting Securities, for its right to receive Warrant Shares upon exercise of this Warrant to be converted, effective as of the record date of such dividend or distribution, into the right to exercise this Warrant to acquire such Warrant Shares plus the Other Voting Securities that such Warrant Shares would have been entitled to receive upon consummation of such dividend or distribution, assuming the exercise in full of this Warrant immediately prior to such record date (disregarding whether or not this Warrant was exercisable by its terms at such time); provided that for purposes of this clause (2), (x) the number and type of Other Voting Securities so deliverable upon any exercise of this Warrant shall be adjusted to take into account any stock or security dividends, splits, reverse splits, spin-offs, split-ups, mergers, reclassifications, reorganizations, recapitalizations, combinations or exchanges of securities and the like from and after the consummation of such dividend or distribution in question and at or prior to such exercise of this Warrant, and (y) with respect to any such Other Voting Securities that are described in clause (b) of the definition of Other Voting Securities, the terms of such Other Voting Securities, as issued upon exercise of this Warrant, shall take into account any anti-dilution or other adjustments that would have been applicable to such Other Voting Securities had such Other Voting Securities been outstanding from and after the consummation of such dividend or distribution in question. In the event that such dividend or distribution in question (or such portion thereof that is in Other Voting Securities, as applicable) is ultimately not so made, this Warrant shall be readjusted, effective as of the date when the Board of Directors determines not to make such dividend or distribution (or such portion thereof that is in Other Voting Securities, as applicable), as though the record date thereof had not been fixed.

Distributions. In case If, at any time after the Issue Date, the Company declares or makes any distribution of cash or any other assets (or rights to acquire such assets) to holders of Common Stock, as a partial liquidating dividend or otherwise, including without limitation any dividend or distribution to the Company’s stockholders in shares (or rights to acquire shares) of capital stock of a subsidiary) (a “Distribution”), the Company shall fix deliver written notice of such Distribution (a “Distribution Notice”) to the Holder at least thirty (30) days prior to the earlier to occur of (i) the record date for determining stockholders entitled to such Distribution (the making “Record Date”) and (ii) the date on which such Distribution is made (the “Distribution Date”) (the earlier of such dates being referred to as the “Determination Date”). In the Distribution Notice to a Holder, the Company shall indicate whether the Company has elected (A) to deliver to such Holder, upon any exercise of this Warrant after the Determination Date, the same amount and type of assets being distributed in such Distribution as though the Holder were, on the Determination Date, a holder of a distribution to all holders number of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in shares of Common Stock into which the Company this Warrant is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment exercisable as of such dividend, Determination Date (such number of shares to be determined at the Exercise Price then in effect and without giving effect to any limitations on such exercise) or a dividend payable in Preferred Shares (which dividend, for purposes B) upon any exercise of this AgreementWarrant on or after the Determination Date, shall be subject to reduce the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred Exercise Price applicable to in Section 11.2), such exercise by reducing the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Exercise Price in effect on the Business Day immediately prior preceding the Record Date by an amount equal to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (of the assets to be distributed divided by the number of shares of Common Stock as to which such Distribution is to be made, such fair market value to be reasonably determined in good faith by the Company’s Board of Directors Directors. If the Company does not notify the Holders of its election pursuant to the Companypreceding sentence on or before the fifteenth (15th) day immediately prior to the Determination Date, whose determination the Company shall be described in a statement filed with the Rights Agentdeemed to have elected clause (A) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixedpreceding sentence.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.such

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Preferred Shares Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares Stock (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price Current Per Share Market Price of the Preferred Shares Stock (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the CompanyBoard, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one share of Preferred Share Stock and the denominator of which shall be such current per share market price Current Per Share Market Price of the Preferred Shares Stock (as determined pursuant to Section 11.4); PROVIDEDprovided, HOWEVERhowever, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be Table of Contents issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case If the Company shall fix a record date for the making of a distribution to all holders of the Preferred Shares Stock (including any such distribution made in connection with a share exchange, consolidation or merger in which the Company is the continuing or surviving corporation) ), of evidences of indebtedness, cash, securities or assets cash (other than a regular periodic cash dividend at a rate not in excess of 125% out of the rate earnings or retained earnings of the last regular periodic cash dividend theretofore paid orCompany), in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or assets (other than a dividend payable in Preferred Shares (which dividendStock, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))but including any dividend payable in stock other than Preferred Stock) or convertible securities, or subscription rights rights, options or warrants (excluding those referred to in Section 11.211(b)), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares Fair Market Value (as determined pursuant to Section 11.411(d)) per one one-thousandth of a share of Preferred Stock on such record date, less the fair market value Fair Market Value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agentpursuant to Section 11(d)) of the portion of the cash, assets, securities assets or evidences of indebtedness so to be distributed or of such convertible securities, subscription rights rights, options or warrants applicable to one one-thousandth of a share of Preferred Share Stock and the denominator of which shall be such current per share market price of the Preferred Shares Fair Market Value (as determined pursuant to Section 11.411(d)) per one one-thousandth of a share of Preferred Stock; PROVIDEDprovided, HOWEVERhowever, that in no event shall the consideration to be paid upon the exercise of one Right a Rights be less than the aggregate par value of the shares of capital stock of the Company to be issued issuable upon exercise of one Righta Rights. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Series A Preferred Shares (including including, without limitation, any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Series A Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the then current per share market price of the Series A Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the CompanyBoard, whose determination shall be described in a written statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one share of Series A Preferred Share and the denominator of which shall be such then current per share market price of the Series A Preferred Shares (as determined pursuant to Section 11.4); PROVIDEDprovided, HOWEVERhowever, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which that would then be in effect if such record date had not been fixed.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights AgentAgent and which shall be conclusive for all purposes) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case If, at any time after the Issue Date, the Company declares or makes any distribution of cash or any other assets (or rights to acquire such assets) to holders of Common Stock, including without limitation any dividend or distribution to the Company’s stockholders in shares (or rights to acquire shares) of capital stock of a subsidiary) (a “Distribution”), the Company shall fix deliver written notice of such Distribution (a “Distribution Notice”) to the Holder at least fifteen (15) days prior to the earlier to occur of (i) the record date for determining stockholders entitled to such Distribution (the making “Record Date”) and (ii) the date on which such Distribution is made (the “Distribution Date”)(the earlier of such dates being referred to as the “Determination Date”). Upon receipt of the Distribution Notice, the Holder shall promptly (but in no event later than three (3) Business Days) notify the Company whether it has elected (A) to receive the same amount and type of assets (including, without limitation, cash) being distributed as though the Holder were, on the Determination Date, a holder of a distribution to all holders number of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in shares of Common Stock into which the Company this Note is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment convertible as of such dividend, Determination Date (such number of shares to be determined without giving effect to any limitations on such conversion) or a dividend payable in Preferred Shares (which dividend, for purposes B) upon any exercise of this AgreementNote on or after the Distribution Date, shall be subject to reduce the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred Conversion Price applicable to in Section 11.2), such conversion by reducing the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Conversion Price in effect on the Business Day immediately prior preceding the Record Date by an amount equal to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (of the assets to be distributed divided by the number of shares of Common Stock as to which such Distribution is to be made, such fair market value to be reasonably determined in good faith by the Board of Directors independent members of the Company’s Board of Directors. Upon receipt of such election notice from the Holder, whose determination the Company shall timely effectuate the transaction or adjustment contemplated in the foregoing clause (A) or (B), as applicable. If the Holder does not notify the Company of its election pursuant to the preceding sentence on or prior to the Determination Date, the Holder shall be described in a statement filed with the Rights Agentdeemed to have elected clause (A) of the portion preceding sentence. In the Distribution Notice to the Holder, the Company shall indicate whether the Company has elected (A) to deliver to the Holder the same amount and type of assets (including, without limitation, cash) being distributed as though the Holder were, on the Determination Date, a holder of a number of shares of Common Stock into which this Note is convertible as of such Determination Date (such number of shares to be determined without giving effect to any limitations on such conversion) or (B) upon any Conversion of this Note on or after the Distribution Date, to reduce the Fixed Conversion Price applicable to such Conversion by reducing the Fixed Conversion Price in effect on the Business Day immediately preceding the Record Date by an amount equal to the fair market value of the cash, assets, securities or evidences of indebtedness so assets to be distributed divided by the number of shares of Common Stock as to which such Distribution is to be made, such fair market value to be reasonably determined in good faith by the independent members of the Company’s Board of Directors. If the Company does not notify the Holders of its election pursuant to the preceding sentence on or of such subscription rights or warrants applicable prior to one Preferred Share and the denominator of which Determination Date, the Company shall be such current per share market price deemed to have elected clause (A) of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixedpreceding sentence.

Distributions. In case If the Company shall fix Company, at any time after the Rights Dividend Declaration Date, fixes a record date for the making of a distribution to all holders of the Series D Preferred Shares (including any such distribution made in connection with a share exchange, consolidation or merger in which the Company is the continuing or surviving corporation) of evidences cash (other than a periodic cash dividend out of indebtednessthe earnings or retained earnings of the Company), cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Series D Preferred Shares (which dividendShares, for purposes but including any dividend payable in stock other than Series D Preferred Shares), evidences of this Agreementindebtedness, shall be subject to the provisions of Section 11.1.1(A))) or convertible securitiessubscription rights, or subscription rights options or warrants (excluding those referred to in Section 11.211(b)), then, in each such case, the Purchase Exercise Price to be in effect after such record date shall will be determined by multiplying the Purchase Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall will be the current per share market price Current Per Share Market Price of the a Series D Preferred Shares (as determined pursuant to Section 11.4) Share on such record date, less the fair market value per Series D Preferred Share (as determined in good faith by the Board of Directors of the CompanyBoard, whose determination shall will be described in a statement filed with the Rights AgentAgent and will be conclusive and binding on the Rights Agent and the holders of the Rights) of the portion of the cash, assets, securities assets or evidences of indebtedness so to be so distributed or of such subscription rights rights, options or warrants applicable to one Series D Preferred Share Share, and the denominator of which shall be such current per share market price Current Per Share Market Price of the a Series D Preferred Shares (as determined pursuant to Section 11.4)Share on such record date; PROVIDEDprovided, HOWEVERhowever, that in no event shall will the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued issuable upon the exercise of one Right. Such adjustments shall adjustment will be made successively whenever such a record date is fixed; , and in the event that such distribution is not so made, then the Purchase Exercise Price shall again will be adjusted to be the Purchase Exercise Price which that would then be have been in effect if such record date had not been fixed.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Series A Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Series A Preferred Shares (which dividend, for purposes of this AgreementPlan, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the then current per share market price of the Series A Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the CompanyBoard, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one share of Series A Preferred Share and the denominator of which shall be such current per share market price of the Series A Preferred Shares (as determined pursuant to Section 11.4); PROVIDEDprovided, HOWEVERhowever, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which that would then be in effect if such record date had not been fixed.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares ({which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))}) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case If the Company shall fix at any time after the issuance of the Warrants but prior to the expiration of the Exercise Period fixes a record date for the making of a distribution to all holders of shares of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) Common Stock of securities, evidences of indebtedness, assets, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those dividends or distributions referred to in Section 11.25.1(a)), then, in each such case, the Purchase Exercise Price to be in effect after prior to such record date shall be adjusted thereafter to the price determined by multiplying the Purchase following formula: EP1 = EP0 x (CP0 - FV)/CP0 where EP1 = the Exercise Price in effect immediately following the application of the adjustments in this Section 5.1(b); EP0 = the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price application of the Preferred Shares (as determined pursuant adjustments in this Section 5.1(b); CP0 = the Closing Sale Price of the Common Stock on the last trading day preceding the first date on which the Common Stock trades regular way without the right to Section 11.4) on receive such record date, less distribution; and FV = the amount of cash and/or the fair market value (of the securities, evidences of indebtedness, assets, rights or warrants to be so distributed in respect of one share of Common Stock, as determined in good faith by the Board of Directors of the Company, whose determination shall be described acting in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Rightgood faith. Such adjustments adjustment shall be made successively whenever such a record date is fixed; . In such event, the number of Warrant Exercise Shares issuable upon the exercise of each Warrant shall be increased to the number obtained by dividing (x) the product of (1) the number of Warrant Exercise Shares issuable upon the exercise of each Warrant before such adjustment, and (2) the Exercise Price in effect immediately prior to the adjustment by (y) the new Exercise Price immediately following such adjustment. In the event that such distribution is not so made, the Purchase Exercise Price and the number of Warrant Exercise Shares issuable upon exercise of the Warrants then in effect shall again be adjusted readjusted, effective as of the date when the Board of Directors of the Company determines not to be distribute such shares, evidences of indebtedness, assets, rights, cash or warrants, as the Purchase case may be, to the Exercise Price which that would then be in effect and the number of Warrant Exercise Shares that would then be issuable upon exercise of the Warrants if such record date had not been fixed.

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.one

Distributions. In case the Company shall fix a record date for the making of a distribution to all holders of the Preferred Shares (including without limitation any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the then current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDEDprovided, HOWEVERhowever, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

Distributions. In case Neither the Company Borrower nor the Trust shall fix a record date make any Distributions which would cause it to violate any of the following covenants: (a) The Borrower shall not make any Distribution if such Distribution is in excess of the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of its Funds from Operations for the making of a distribution four (4) consecutive fiscal quarters ending prior to all holders the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing, Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in Sections 8.3(j) and 8.7(b)) (i) make Distributions in order to enable Borrower or the Trust to repurchase common or Preferred Equity of the Trust or (ii) redeem existing Preferred Shares Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust so long as (including A) no Event of Default shall have occurred and be continuing on the date of any such distribution made repurchase and (B) no Default or Event of Default shall occur as a result of any such repurchase. Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement; (b) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with a consolidation the repurchase of common or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash, securities or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last regular periodic cash dividend theretofore paid or, in case regular periodic cash dividends have not theretofore been paid, at a rate not in excess of 50% of the average net income per share of the Company for the four quarters ended immediately prior to the payment of such dividend, or a dividend payable in Preferred Shares (which dividend, for purposes of this Agreement, shall be subject to the provisions of Section 11.1.1(A))) or convertible securities, or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares (as determined pursuant to Section 11.4); PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital preferred stock of the Company to Trust at any time after an Event of Default shall have occurred and be issued upon exercise continuing; and (c) Notwithstanding the foregoing, at any time when an Event of one Right. Such adjustments Default shall be made successively whenever such a record date is fixed; have occurred and in the event that such distribution is not so madematurity of the Obligations has been accelerated, neither the Purchase Price Borrower nor the Trust shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixedmake any Distributions whatsoever, directly or indirectly.