Common use of NO DILUTION OR IMPAIRMENT; CAPITAL AND OWNERSHIP STRUCTURE Clause in Contracts

NO DILUTION OR IMPAIRMENT; CAPITAL AND OWNERSHIP STRUCTURE. If any event shall occur as to which the provisions of SECTION 10 are not strictly applicable but the failure to make any adjustment would adversely affect the purchase rights represented by the Warrants in accordance with the essential intent and principles of such Section, then, in each such case, Holdings shall appoint, at its own expense, an investment banking firm of recognized national standing that does not have a direct or material indirect financial interest in Holdings or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to Holdings, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of Holdings or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in SECTION 10, necessary to preserve, without dilution, the purchase rights, represented by this Agreement and the Warrants. Upon receipt of such opinion, Holdings will promptly mail a copy thereof to the holders of the Warrants and shall make the adjustments described therein. Holdings will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of the Warrants, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the holders of the Warrants against dilution or other impairment. Without limiting the generality of the foregoing, Holdings (1) will take all such action as may be necessary or appropriate in order that Holdings may validly and legally issue fully paid and nonassessable shares of Common Stock on the exercise of the Warrants from time to time outstanding and (2) will not take any action which results in any adjustment of the Exercise Rate if the total number of Warrant Shares issuable after such action upon the exercise of all of the Warrants would exceed the total number of shares of Common Stock then authorized by Holdings' certificate of incorporation and available for the purposes of issue upon such exercise. A consolidation, merger, reorganization or transfer of assets involving Holdings covered by SECTION 10(M) shall not be prohibited by or require any adjustment under this SECTION 11.

NO DILUTION OR IMPAIRMENT; CAPITAL AND OWNERSHIP STRUCTURE. If any event shall occur as to which the provisions of SECTION 10 Section 12 are not strictly applicable but the failure to make any adjustment would adversely affect the purchase rights represented by the Warrants in accordance with the essential intent and principles of such Section, then, in each such case, Holdings the Company shall appoint, at its own expense, an investment banking firm of recognized national standing that does not have a direct or material indirect financial interest in Holdings the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to Holdingsthe Company, is not (and none of its directors, officers, employees, affiliates or stockholders shareholders are) a promoter, director or officer of Holdings the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in SECTION 10Section 12, necessary to preserve, without dilution, the purchase rights, represented by this Agreement and the WarrantsWarrant. Upon receipt of such opinion, Holdings the Company will promptly mail a copy thereof to the holders holder of the Warrants Warrant and shall make the adjustments described therein. Holdings The Company will not, by amendment of its certificate articles of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of the WarrantsWarrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the holders holder of the Warrants Warrant against dilution or other impairment. Without limiting the generality of the foregoing, Holdings the Company (1a) will take all such action as may be necessary or appropriate in order that Holdings the Company may validly and legally issue fully paid and nonassessable shares of Common Stock on the exercise of the Warrants from time to time outstanding outstanding, and (2b) will not take any action which results in any adjustment of the Exercise Rate if the total number of Warrant Shares issuable after such the action upon the exercise of all of the Warrants Warrant would exceed the total number of shares of Common Stock then authorized by Holdings' certificate the Company's articles of incorporation and available for the purposes of issue upon such exercise. A consolidation, merger, reorganization or transfer of assets involving Holdings the Company covered by SECTION 10(MSection 12(l) shall not be prohibited by or require any adjustment under this SECTION 11Section 13.

NO DILUTION OR IMPAIRMENT; CAPITAL AND OWNERSHIP STRUCTURE. If any event shall occur as to which the provisions of SECTION Section 10 are not strictly applicable but the failure to make any adjustment would materially and adversely affect the purchase rights represented by the Warrants in accordance with the essential intent and principles of such Section, then, in each such case, Holdings the Company shall appoint, at its own expense, an investment banking firm of recognized national standing that does not have a direct or material indirect financial interest in Holdings the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to Holdingsthe Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of Holdings the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in SECTION Section 10, necessary to preserve, without dilution, the purchase rights, represented by this Warrant Agreement and the Warrants. Upon receipt of such opinion, Holdings the Company will promptly mail a copy thereof to the holders of the Warrants and shall make the adjustments described therein. Holdings The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of the Warrants, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the holders holder of the Warrants against dilution or other impairment. Without limiting the generality of the foregoing, Holdings the Company (1) will take all such action as may be necessary or appropriate in order that Holdings the Company may validly and legally issue fully paid and nonassessable shares of Common Stock on the exercise of the Warrants from time to time outstanding and (2) will not take any action which results in any adjustment of the Exercise Rate if the total number of Warrant Shares issuable after such the action upon the exercise of all of the Warrants would exceed the total number of shares of Common Stock then authorized by Holdings' the Company’s certificate of incorporation and available for the purposes of issue upon such exercise. A consolidation, merger, reorganization or transfer of assets involving Holdings the Company covered by SECTION 10(MSection 10(m) shall not be prohibited by or require any adjustment under this SECTION Section 11.

NO DILUTION OR IMPAIRMENT; CAPITAL AND OWNERSHIP STRUCTURE. If any event shall occur as to which the provisions of SECTION 10 Article VI are not ---------- strictly applicable applicable, but the failure to make any adjustment would adversely affect the purchase rights represented by the Warrants in accordance with the essential intent and principles of such SectionArticle, then, in each such case, Holdings the Company shall appoint, at its own expense, appoint an investment banking firm of recognized national standing that does not have a direct or material indirect financial interest in Holdings the Company or any of its subsidiariesSubsidiaries, who which has not been, and, at the time it is called upon to give independent financial advice to Holdingsthe Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of Holdings the Company or any of its subsidiariesSubsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in SECTION 10Article VI, necessary to ---------- preserve, without dilution, the purchase rights, rights represented by this Agreement and the Warrants. Upon receipt of such opinion, Holdings the Company will promptly mail a copy thereof to the holders of the Warrants and shall make the adjustments described therein. Holdings The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of the Warrants, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the holders holder of the Warrants against dilution or other impairment. Without limiting the generality of the foregoing, Holdings the Company (1a) will take all such action as may be necessary or appropriate in order that Holdings the Company may validly and legally issue fully paid and nonassessable shares of Common Stock on the exercise of the Warrants from time to time outstanding and (2b) will not take any action which results in any adjustment of the Exercise Rate Price if the total number of Warrant Shares issuable after such the action upon the exercise of all of the Warrants would exceed the total number of shares of Common Stock then authorized by Holdings' the Company's certificate of incorporation and available for the purposes of issue upon such exercise. A consolidation, merger, reorganization or transfer of assets involving Holdings the Company covered by SECTION 10(M) Section 6.15 shall not be prohibited by or require any adjustment under this SECTION 11.------------ Article VIII. ------------

NO DILUTION OR IMPAIRMENT; CAPITAL AND OWNERSHIP STRUCTURE. If any event shall occur as to which the provisions of SECTION Section 10 are not strictly applicable but the failure to make any adjustment would adversely affect the purchase rights represented by the Warrants in accordance with the essential intent and principles of such Section, then, in each such case, Holdings the Company shall appoint, at its own expense, appoint an investment banking firm of recognized national standing that does not have a direct or material indirect financial interest in Holdings the Company or any of its subsidiaries, who which has not been, and, at the time it is called upon to give independent financial advice to Holdingsthe Company, is not (and none of its directors, officers, managers, members, employees, affiliates or stockholders are) a promoter, director member, manager or officer of Holdings the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in SECTION Section 10, necessary to preserve, without dilution, the purchase rights, rights represented by this Agreement and the Warrants. Upon receipt of such opinion, Holdings the Company will promptly mail a copy thereof to the holders Holders of the Warrants and shall make the adjustments adjustment described therein. Holdings The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of the Warrants, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the holders Holder of the Warrants against dilution or other impairment. Without limiting the generality of the foregoing, Holdings the Company (1a) will take all such action actions as may be necessary or appropriate in order that Holdings the Company may validly and legally issue fully paid and nonassessable shares of Series B Common Stock on the exercise of the Warrants from time to time outstanding and (2b) will not take any action which results in any adjustment of the Exercise Rate Price if after the action the total number of Warrant Shares issuable after such action upon the exercise of all of the Warrants would exceed the total number of shares of Common Stock then authorized by Holdings' the Company's certificate of incorporation and available for the purposes of issue upon such exercise. A consolidation, merger, reorganization or transfer of assets involving Holdings the Company covered by SECTION 10(MSection 10(k) shall not be prohibited by or require any adjustment under this SECTION Section 11.

NO DILUTION OR IMPAIRMENT; CAPITAL AND OWNERSHIP STRUCTURE. If any event shall occur as to which the provisions of SECTION 10 are not strictly applicable but the failure to make any adjustment would adversely affect the purchase rights represented by the Warrants in accordance with the essential intent and principles of such Section, then, in each such case, Holdings shall appoint, at its own expense, an investment banking firm of recognized national standing that does not have a direct or material indirect financial interest in Holdings or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to Holdings, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of Holdings or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in SECTION 10, necessary to preserve, without dilution, the purchase rights, represented by this Agreement and the Warrants. Upon receipt of such opinion, Holdings will promptly mail a copy thereof to the holders of the Warrants and shall make the adjustments described therein. Holdings The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of the Warrants, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be reasonably necessary or appropriate in order to protect the rights of the holders of the Warrants against dilution or other impairmentHolders under this Agreement. Without limiting the generality of the foregoing, Holdings the Company (1a) will take all such action as may be reasonably necessary or 39 appropriate in order that Holdings the Company may validly and legally issue fully paid and nonassessable shares of Common Stock on the exercise of the Warrants from time to time outstanding and (2b) will not take any action which results in any adjustment of the Exercise Rate Price if the total number of Warrant Shares issuable after such the action upon the exercise of all of the Warrants would exceed the total number of shares of Common Stock then authorized by Holdings' the Company's certificate of incorporation and available for the purposes of issue upon such exercise. A consolidation, merger, reorganization or transfer of assets involving Holdings the Company covered by SECTION 10(MSection 11(b) or 11(e) shall not be prohibited by or require any adjustment under this SECTION 11Section 13. It is the intent of this Agreement to provide that, on and as of the Closing Date, the number of Warrant Shares into which the Warrants are exercisable represent 7.333% of the issued and outstanding shares of Common Stock on a fully diluted basis. For purposes of this paragraph, the phrase "on a fully diluted basis" shall include any and all options, warrants or other rights to acquire common equity of the Company, whether or not exercisable on the Closing Date but excluding all such options, warrants (other than the Warrants) or other rights to acquire common equity at an exercise or conversion price greater than the exercise price of the Warrants as of the Closing Date, as adjusted. If either (i) the issuance of the Warrants causes the application of the anti-dilution provisions of any of the Company's warrants, options or convertible securities outstanding as of the Closing Date to result in an increase in the number of shares of Common Stock issuable thereunder or (ii) after the Closing Date the exercise price of the Company's then outstanding warrants, options or convertible securities is adjusted to an exercise price equal to or less than the Exercise Price of the Warrants, such additional shares of Common Stock, or such shares of Common Stock issuable upon the exercise or conversion of such warrants, options or convertible securities, as the case may be, will be included in the calculation of the Common Stock on a fully diluted basis, and the number of Warrant Shares issuable upon exercise of each Warrant automatically shall be adjusted upward by an amount sufficient to bring the total number of Warrant Shares issuable pursuant to the Warrant Agreement to a number representing 7.333% of the then issued and outstanding shares of Common Stock of the Company on a fully diluted basis.

NO DILUTION OR IMPAIRMENT; CAPITAL AND OWNERSHIP STRUCTURE. If any event shall occur as to which the provisions of SECTION 10 Section 11 are not strictly applicable but the failure to make any adjustment would adversely affect the purchase rights represented by the Warrants in accordance with the essential intent and principles of such Section, then, in each such case, Holdings the Company shall appoint, at its own expense, appoint an investment banking firm of recognized national standing that does not have a direct or material indirect financial interest in Holdings the Company or any of its subsidiaries, who which has not been, and, at the time it is called upon to give independent financial advice to Holdingsthe Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of Holdings the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in SECTION 10Section 11, necessary to preserve, without dilution, the purchase rights, rights represented by this Agreement and the Warrants. Upon receipt of such opinion, Holdings the Company will promptly mail a copy thereof to the holders of the Warrants and shall make the adjustments described therein. Holdings The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of the Warrants, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the holders holder of the Warrants against dilution or other impairment. Without limiting the generality of the foregoing, Holdings the Company (1a) will take all such action as may be necessary or appropriate in order that Holdings the Company may validly and legally issue fully paid and nonassessable shares of Common Stock on the exercise of the Warrants from time to time outstanding and (2b) will not take any action which results in any adjustment of the Exercise Rate Price if the total number of Warrant Shares issuable after such the action upon the exercise of all of the Warrants would exceed the total number of shares of Common Stock then authorized by Holdings' the Company's certificate of incorporation and available for the purposes of issue upon such exercise. A consolidation, merger, reorganization or transfer of assets involving Holdings the Company covered by SECTION 10(MSection 11 (m) shall not be prohibited by or require any adjustment under this SECTION 11Section 12.