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 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 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 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 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 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 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 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 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 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, 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 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, 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 ten (10) Trading 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 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 If at any time after the date hereof 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) its Common Stock of evidences of indebtedness, cash, securities its indebtedness or assets (other than a regular periodic excluding 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 distributions made as a dividend payable in Preferred Shares (which dividend, out of earnings or out of surplus legally available for purposes dividends under the laws of this Agreement, shall be subject to the provisions jurisdiction of Section 11.1.1(A))the Company) or convertible securities, or subscription rights or warrants to subscribe (excluding those referred to in Section 11.2subsection (b) above), then in each case the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Warrant Price in effect immediately prior to such record date shall be decreased to an amount determined by multiplying such Warrant Price by a fraction, the numerator of which shall be is the current per share market price of the Preferred Shares (as determined pursuant to Section 11.4) Current Market Price on such record date, date less the then 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 assets 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 is the Current Market Price at such date. The number of shares purchasable on such record date shall be increased to a number of shares equal to (i) the number of shares purchasable at the date of such current per share market price of distribution multiplied by the Preferred Shares Warrant Price in effect immediately prior to the adjustment required by the preceding sentence, divided by (as determined ii) the adjusted Warrant Price computed 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 Rightpreceding sentence. 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 Warrant Price shall again be adjusted to be the Purchase Warrant 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 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 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 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. 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 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 (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. 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 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 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 (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 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 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)) 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. (a) The Company shall distribute to each Member as promptly as practicable (and in any event within forty-five (45) days) after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year of the Company an amount equal to such Member's Quarterly Tax Distribution for such Fiscal Quarter. In case addition, the Company shall fix distribute to each Member as promptly as practicable (and in any event within forty-five (45) days) after the end of each Fiscal Year an amount equal to the excess, if any, of such Member's Proportionate Tax Share for such Fiscal Year over the aggregate amount of Quarterly Tax Distributions made to such Member with respect to such Fiscal Year. (b) At the end of each of the second Fiscal Quarter and the fourth Fiscal Quarter, the Board of Directors shall determine if a record date Leverage Ratio Deficit exists. If a Leverage Ratio Deficit exists, the Board of Directors, as promptly as practicable after the end of such Fiscal Quarter, shall meet and take such action as the Directors deem necessary to reduce the Leverage Ratio Deficit to zero. If the Board of Directors fails to reduce the Leverage Ratio Deficit to zero within forty-five (45) days following the end of the second or fourth Fiscal Quarter, the Chief Executive Officer shall cause the Company to distribute to the Members in proportion to their relative Percentage Interests an amount equal to the Minimum Leverage Distribution for the making applicable six-month period. (c) Any distributions by the Company to the Members, other than the Tax Distribution and the Minimum Leverage Distribution, shall be payable at the discretion of the Board of Directors. (d) To the extent the Company is required by law to withhold or to make tax payments on behalf of or with respect to any Member, the Company may withhold such amounts and make such tax payments as so required. For purposes of this Agreement, any such payments or withholdings shall be treated as a distribution to all holders the Member on behalf of whom the withholding or payment was made. (e) Notwithstanding anything to the contrary contained in this Section 9.2, the Company shall not make any distribution to the Members which would render the Company insolvent or which is otherwise prohibited by applicable law. (f) Notwithstanding anything to the contrary contained in this Agreement, in accordance with Section 6.16 of the Preferred Shares Contribution Agreement, (including any such distribution made in connection with a consolidation or merger in which i) the Company is shall secure, by the continuing Closing Date or surviving corporationas soon as practicable thereafter, bank credit facilities or other credit of $1,670,000,000 (or such lesser amount as would allow the Company to maintain an investment-grade debt rating) of evidences of indebtedness, cash, securities or assets on reasonably available commercial terms agreeable to the Members (other than a regular periodic cash dividend at a rate not in excess of 125% the "Initial Financing"); and (ii) upon the funding of the rate Initial Financing, the Company shall distribute the net proceeds 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 Initial Financing as follows: an aggregate of 50% of the average net income per share proceeds of the Company for the four quarters ended immediately prior Initial Financing to the payment Class P Members (to each Class P Member in the ratio of its Percentage Interest to the sum of the Percentage Interests of all Class P Members as of the Closing Date) and an aggregate of 50% of the net proceeds of the Initial Financing to the Class C Members (to each Class C Member in the ratio of its Percentage Interest to the sum of the Percentage Interests of all Class C Members as of the Closing Date); provided, however, that if the Percentage Interests of the Class P Members and the Class C Members have not been determined as of the date of such dividenddistribution, or a dividend payable then the Company shall distribute the net proceeds of the Initial Financing that are distributable to the Class P Members to the Initial Phil▇▇▇▇ ▇▇▇ber as agent for such Class P Members and shall distribute the net proceeds of the Initial Financing that are distributable to the Class C Members to the Initial Chevron Member as agent for such Class C Members, and the Initial Phil▇▇▇▇ ▇▇▇ber will transfer such proceeds to each such Class P Member in Preferred Shares (which dividendthe ratio of its Percentage Interest to the sum of the Percentage Interests of all Class P Members and the Initial Chevron Member will transfer such proceeds to each such Class C Member in the ratio of its Percentage Interest to the sum of the Percentage Interests of all Class C Members when such Percentage Interests are fixed; provided further, for purposes of this Agreementhowever, that the aggregate amount distributed to the Class P Members shall be subject reduced by (A) the sum of any indebtedness of P Chem (as defined in the Contribution Agreement) as of the Closing Date other than indebtedness of the entities set forth on Schedule 6.16 of the Phil▇▇▇▇ ▇▇▇closure Schedule to the provisions Contribution Agreement and other than debt incurred in the ordinary course of Section 11.1.1(A))business (pursuant to financial arrangements or plans previously disclosed to Chevron) or convertible securities, or subscription rights or warrants by such entities and (excluding those referred to in Section 11.2), 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 SOLP adjustment amount set forth on Schedule 6.16 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.Phil▇▇▇▇ ▇▇▇closure

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 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 (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 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); 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 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 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. 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. 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 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 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 a regular periodic excluding 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 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) days after the issuance thereof, then in Preferred Shares 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 the 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 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 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 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 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 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 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 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 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 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 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 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 a regular periodic excluding 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 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, then in Preferred Shares 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 the 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 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 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 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 If, at any time after the Issue Date, the Company shall fix a record date for the making declares or makes any distribution of a cash or any other assets (or rights to acquire such assets) to holders of Common Stock, including without limitation any dividend or 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 ’s stockholders in a statement filed with the Rights Agentshares (or rights to acquire shares) 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 a subsidiary (a “Distribution”), the Company shall 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 “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 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 number of shares of Common Stock into which this Warrant is exercisable as of such Determination Date (such number of shares to be issued determined without giving effect to any limitations on such exercise) or (B) upon any exercise of one Rightthis Warrant on or after the Distribution Date, to reduce the Exercise Price in effect on the Business Day immediately preceding the Record Date (such date being deemed the Exercise Date for purposes hereof) by an amount equal to the Distribution Per Share Value. Such adjustments Upon receipt of such election notice from the Holder, the Company shall timely effectuate the transaction or adjustment contemplated in the foregoing clauses (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 made successively whenever such a record date is fixed; and in deemed to have elected clause (A) of 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 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 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 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 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 4832-9196-6153v.2 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 During such time as this Warrant is outstanding, if the Company shall fix a record date for declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options (excluding rights that are the making subject of Section 3(a)) by way of a distribution dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) which does not trigger an adjustment pursuant to all holders Section 3(a) above (a “Distribution”), at any time after the issuance 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 indebtednessthis Warrant, 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 orthen, 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 each 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)case, 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 5:00 p.m. Eastern time on the date for the determination of the holders of outstanding shares of Common Stock entitled to receive such record date by a fraction, the numerator of which Distribution shall be decreased by the current per share market price quotient of the Preferred Shares (as determined pursuant to Section 11.4i) on such record date, less the fair market value (of the applicable Distribution as determined at the Company’s expense by an independent nationally recognized investment banking, accounting or valuation firm selected in good faith by the Board Company and the Holder (provided, if the applicable Distribution consists solely of Directors cash, then the fair market value of such Distribution shall be the total amount of cash distributed in connection therewith and not require the engagement of any independent appraiser), divided by (ii) the total number of outstanding shares of Common Stock held by the holders entitled to receive such Distribution, each to be determined as of the record date for such Distribution so distributed. Any adjustment pursuant to this Section 3(b) shall become effective immediately following 5:00 p.m. Eastern time on the date for determination of the holders of shares of Common Stock entitled to receive such Distribution. For purposes of this Section 3(b) any options or warrants distributed by the Company to all holders of the Common Stock entitling them to subscribe for or purchase shares of the Company’s capital stock, whose determination including Common Stock (either initially or under certain circumstances), which options or warrants, until the occurrence of a specified event or events (each a “Trigger Event”): (i) are deemed to be transferred with such shares of the Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of the Common Stock, shall be described in a statement filed with deemed not to have been distributed for purposes of this Section 3(b), until the Rights Agent) occurrence of the portion earliest Trigger Event. Upon any Trigger Event in respect of the cash, assets, securities or evidences of indebtedness so to be distributed or of any such subscription rights options or warrants applicable to one Preferred Share and the denominator of which at any time while this Warrant is outstanding, they shall be such current per share market price of the Preferred Shares (as determined pursuant deemed 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 have been distributed and appropriate adjustments shall be made successively whenever under this Section 3(b), provided that to the extent any such a record date is fixed; and in options or warrants expire unexercised, the event that adjustment made under this Section 3(b) shall be reversed at the time of such expiration to the extent of the unexercised options or warrants. Further, to the extent any distribution is declared but not so mademade or paid, the Purchase Exercise Price shall again will not be adjusted pursuant to be the Purchase Price which would then be in effect if such record date had not been fixedprovision above.

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 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 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 than Common 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 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(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 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 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 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 written 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 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 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 Common 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 Common 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 Preferred Share share of Common Stock and the denominator of which shall be such current per share market price of the Preferred Shares Common 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 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)11(a)(i)(A)) or convertible securities, or subscription rights 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 Stock (as determined pursuant to Section 11.411(d)) 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 11.411(d)); 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 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 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 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 (a) Each distribution made by the Company, regardless of the source or character of the assets to be distributed, shall be made in accordance with this Article VI and applicable Law, including Section 18−607 of the Act. AAG HOLDING CO1, LLC Limited Liability Company Operating Agreement (b) Any provision to the contrary contained in this Operating Agreement notwithstanding, but in all instances limited by applicable law, in addition to the Tax Distributions, the Company shall fix a record date for the making of a distribution make monthly distributions to all holders of the Preferred Shares (including any such distribution made each Member, pro rata in connection accordance with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtednesstheir respective Percentage Interests, 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 and subject to the provisions availability 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 Available Cash (as determined in good faith by the Board Board) in an amount equal to 90% of Directors Available Cash. Such monthly distributions shall be made to the Members on or before the 21st day after the end of the Companypreceding month’s operations on which determination of Available Cash is made. (c) Notwithstanding anything to the contrary in this Article VI, whose determination the Company shall, subject to the availability of proceeds (as determined in good faith by the Board) make cash distributions to each Member on the Tax Distribution Date with respect to each Fiscal Year to the extent of the required Tax Distribution, if any, of such Member for such Fiscal Year. In addition, upon the request of any Member, the Company shall make advance distributions to such Member on a quarterly basis based upon estimates of the required Tax Distribution in a manner sufficient to permit such Member to satisfy its quarterly estimated tax payment obligations and if the sum of the amount of quarterly tax distributions exceeds the amount of the Tax Distribution the Member shall promptly refund such excess to the Company upon such notice. All quarterly tax distributions to a Member shall be described in treated as an advance of, and shall offset, the cash distribution payable to the Member (pursuant to this Section 6.1(d)) on the next Tax Distribution Date. If on a statement filed with Tax Distribution Date (or date of a quarterly estimated distribution) there are not sufficient funds on hand to distribute to each Member the Rights Agent) full amount of such Member’s Tax Distribution (or quarterly estimate thereof), distributions shall be made to the Members to the extent of the available funds in proportion to each Member’s required Tax Distribution (or quarterly estimate thereof), and the Company shall make future distributions as soon as funds become available to pay the remaining portion of such Member’s required Tax Distribution (or quarterly estimate thereof) and shall not, until the cashremaining portion of each such Member’s required Tax Distribution (or quarterly estimate thereof) is so distributed, assetsmake a distribution other than pursuant to this sentence. The Tax Distribution (or quarterly advance thereon) distributed to any Member shall be treated as an advance of, securities or evidences of indebtedness so and shall offset distributions distributable to be distributed or of such subscription rights or warrants applicable Member pursuant to one Preferred Share and the denominator of which this Agreement. It is understood that Tax Distributions to each Member shall be such current per share market price of Member’s Cumulative Assumed Tax Liability based on each Member’s tax consequences related to such Member’s Percentage Interests in the Preferred Shares Company. (as determined pursuant to d) All distributions made under this 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 6.1 shall be made successively whenever such a to the holders of record of the applicable Membership Interests on the date is fixed; and in of 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 fixeddistribution.

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 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 Common 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 dividendCommon Shares, for purposes but including any dividend payable in stock other than Common 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 Preferred Common Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value per share of Common 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 Preferred Share share of Common Shares, and the denominator of which shall will be such current per share market price the Current Per Share Market Price of the Preferred Common 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 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 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 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 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); 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 issuable 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 AgentAgent and shall be binding and 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 the Company shall fix a record date for the making of a distribution to all holders of the Preferred Incentive 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 Incentive 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 Incentive 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 Incentive Share and the denominator of which shall be such current per share market price of the Preferred Incentive 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 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 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 Interim Target Product Revenues and the Company Target Product Revenues shall fix be assessed on a record date for the making of a distribution to all holders cumulative basis by Acquiror as of the Preferred final day of each of the Interim Revenue Period and the Target Revenue Period, respectively. If and to the extent (1) Interim Target Product Revenues would result in the issuance of Interim Additional Consideration Shares (including determined pursuant to the definition of such term above) and/or (2) Target Product Revenues would result in the issuance of Final Additional Consideration Shares (determined pursuant to the definition of such term above), then as soon as practicable, which shall not be sooner than the 15th business day nor later than the 30th business day following the earlier of (i) the resolution of any dispute pursuant to Section 1.6(c)(iii), (ii) the expiration of the time period during which the Stockholder Representative may deliver the Dispute Notice pursuant to Section 1.6(c)(ii) without the delivery of any such distribution made in connection with a consolidation Dispute Notice or merger in (iii) the written and unconditional waiver by the Stockholder Representative of the time period during which the Company is Stockholder Representative may deliver the continuing Dispute Notice pursuant to Section 1.6(c)(ii), Acquiror shall issue 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 caused to be issued to the payment Former Target Stockholders the requisite number of such dividendInterim Additional Consideration Shares or Final Additional Consideration Shares, or a dividend payable in Preferred Shares (which dividendas applicable, 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 issuable to Section 11.4) on such record date, less the fair market value (as determined Former Target Stockholders in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed accordance with the Rights Agent) of Interim Additional Consideration Exchange Ratio and/or the portion of Final Additional Consideration Exchange Ratio. Each date on which such Additional Consideration Shares are issued to the cash, assets, securities or evidences of indebtedness so Former Target Stockholders is referred 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 (herein 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“Distribution Date.”

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 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 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); 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 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.Price

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 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 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.