Common use of Tender and Exchange Offers Clause in Contracts

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or exchanged shares) on the date of the expiration time less (ii) the number of all shares validly tendered, not withdrawn and accepted for payment on the date of the expiration time (such validly tendered or exchanged shares, up to any such maximum, being referred to as the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

Tender and Exchange Offers. In If the case that a tender offer or exchange offer made by us Company or any subsidiary for all or any portion of our common stock shall expire and such its Subsidiaries makes a payment in respect of a tender or exchange offer (as amended through for the expiration thereof) shall require Common Shares, to the extent that the cash and value of any other consideration included in the payment to stockholders (based on per Common Share exceeds the acceptance (up to any maximum specified in the terms average of the tender offer or exchange offerLast Reported Sale Prices of the Common Shares over the 10 consecutive Trading Day period (the “TO Valuation Period”) of purchased shares) of an aggregate consideration having a fair market value per share of our common stock that exceeds commencing on, and including, the VWAP on the trading day Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer, thenthe Target Price shall be decreased based on the following formula: where, TP0 = the Target Price in effect immediately prior to the opening open of business on the second first Trading Day of the TO Valuation Period; TP1 = the Target Price in effect immediately after the open of business day on the first Trading Day of the TO Valuation Period; AC = the aggregate value of all cash and any other consideration (as determined by the Board of Directors in good faith and in a commercially reasonable manner) paid or payable for Common Shares purchased in such tender or exchange offer; OS0 = the number of Common Shares outstanding immediately prior to the date such tender or exchange offer expires (prior to giving effect to the purchase of all Common Shares accepted for purchase or exchange in such tender or exchange offer); OS1 = the number of Common Shares outstanding immediately after the date of the last time (which we refer to as the “expiration time”) tenders or exchanges could have been made pursuant to such tender offer or exchange offer expires (as amended through after giving effect to the expiration thereofpurchase of all Common Shares accepted for purchase or exchange in such tender or exchange offer), each fixed settlement rate ; and SP1 = the average of the Last Reported Sale Prices over the TO Valuation Period. The adjustment to the Target Price under this Section 4(e) shall be increased by dividing: · each fixed settlement rate immediately prior to occur at the close of business on the date last day of the expiration time by · TO Valuation Period; provided that if the Outside Date occurs during the TO Valuation Period, for the purposes of determining the Target Price, a fraction (Areference to “10” in this Section 4(e) the numerator of which shall be equal to (x) deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the product of (i) the current market price on the date first day of the expiration time TO Valuation Period to, and (ii) including, the number of shares of common stock outstanding (including any tendered or exchanged shares) on Outside Date. To the date of the expiration time less (y) the amount of cash consideration plus the fair market value of the aggregate non-cash consideration payable to stockholders pursuant to the extent such tender offer or exchange offer (assuming the acceptance, up to any maximum specified in the terms of the tender offer or exchange offer, of purchased shares), and (B) the denominator of which shall be equal to the product of (x) the current market price on the date of the expiration time and (y) the result of (i) the number of shares of our common stock outstanding is announced but not consummated (including any tendered or exchanged shares) on the date of the expiration time less (ii) the number of all shares validly tendered, not withdrawn and accepted for payment on the date of the expiration time (such validly tendered or exchanged shares, up to any such maximum, being referred to as the “purchased shares”). The “current market price” per share of our common stock or any other security on any day means the average VWAP for the 20 consecutive trading days preceding the earlier of the day preceding the day in question and the day before the “ex date” with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term “ex date,” when used with respect to any issuance or distribution, means the first date on which our common stock or such other security, as applicable, trades, regular way, on the principal U.S. securities exchange or quotation system on which our common stock or such other security, as applicable, is listed or quoted at that time, without the right to receive the issuance or distribution. Reorganization Events. The following events are defined as “reorganization events”: · any consolidation or merger of Xxxxxx Xxxxxxx with or into another person or of another person with or into Xxxxxx Xxxxxxx; or · any sale, transfer, lease or conveyance to another person of the property of Xxxxxx Xxxxxxx as an entirety or substantially as an entirety; or · any statutory share exchange of Xxxxxx Xxxxxxx with another person (other than in connection with a merger or acquisition); or · any liquidation, dissolution or termination of Xxxxxx Xxxxxxx in each case in which holders of our common stock would be entitled to receive cash, securities or other property for their shares of common stock. Upon a reorganization event, each stock purchase contract shall thereafter, in lieu of a variable number of shares of our common stock, be settled by delivery of exchange property units. An “exchange property unit” represents the right to receive the kind and amount of securities, cash and other property receivable in such reorganization event (without any interest thereon, and without any right to dividends or distribution thereon which have a record date that is prior to the applicable settlement date) per share of our common stock by a holder of common stock that is not a person with which we are consolidated or into which we are merged or which merged into us or to which such sale or transfer was made, as the case may be (we refer to any such person as a “constituent person”), or an affiliate of a constituent person to the extent such reorganization event provides for different treatment of common stock held by our affiliates and non-affiliates. In the event all holders of our common stock (other than any constitutent person and affiliates thereof) do not receive the same form of consideration to be received in such transaction, the exchange property unit that holders of the Corporate Units or Treasury Units will be entitled to receive will be deemed to be the weighted average of the types and amounts of consideration received by the holders of our common stock that affirmatively make an election (or of all such holders if none make an election). In the event of such a reorganization event, the person formed by such consolidation, or merger or the person which acquires our assets shall execute and deliver to the transfer agent an agreement providing that the holder of each PEPS Unit that remains outstanding after the reorganization event (if any) shall have the rights described in the preceding paragraph. Such supplemental agreement shall provide for adjustments to the amount of any securities constituting all or a portion of an exchange property unit which, for events subsequent to the effective date of such reorganization event, shall be as nearly equivalent as may be practicable to the adjustments provided for in this “—Anti-dilution Adjustments” section. The provisions described in the preceding two paragraphs shall similarly apply to successive reorganization events. Holders have the right to settle their obligations under the PEPS Units early in the event of certain cash mergers as described above under “—Early Settlement Upon Cash Merger.” You may be treated as receiving a constructive distribution from us with respect to the stock purchase contract if under applicable Treasury regulations (1) the settlement rate is adjusted (or fails to be adjusted) and, as a result of being precluded from consummating such tender or exchange offer under applicable law), or any purchases or exchanges of Common Shares in such tender or exchange offer are rescinded, the Target Price will be readjusted to the Target Price that would then be in effect had the adjustment (been made on the basis of only the purchases or failure to adjust)exchanges of Common Shares, your proportionate interest in our assets or earnings and profits is increasedif any, actually made, and (2) the adjustment (or failure to adjust) is not made pursuant to a bona fide, reasonable anti-dilution formula. Thus, under certain circumstances, an increase in (or a failure to decrease) the settlement rate might give rise to a taxable dividend to you even though you will not receive any cash in connection with the increase in (or failure to decrease) the settlement rate. In addition, non-U.S. holders of PEPS Units mayrescinded, in certain circumstances, be deemed to have received a distribution subject to U.S. federal withholding tax. In addition, we may increase the settlement rate if our board of directors deems it advisable to avoid such tender or diminish any income tax to holders of our common stock resulting from any dividend or distribution of shares (or rights to acquire shares) or from any event treated as a dividend or distribution for income tax purposes or for any other reasons. Adjustments to the settlement rate will be calculated to the nearest 1/10,000th of a share. No adjustment in the settlement rate will be required unless the adjustment would require an increase or decrease of at least one percent in the settlement rate. If any adjustment is not required to be made because it would not change the settlement rate by at least one percent, then the adjustment will be carried forward and taken into account in any subsequent adjustment, provided that effect shall be given to anti-dilution adjustments not later than the stock purchase date for a PEPS Unit. No adjustment to the settlement rate need be made if holders may participate in the transaction that would otherwise give rise to an adjustment, so long as the distributed assets or securities the holders would receive upon settlement of the PEPS Units, if convertible, exchangeable, or exercisable, are convertible, exchangeable or exercisable, as applicable, without any loss of rights or privileges for a period of at least 60 days following settlement of the PEPS Units. The fixed settlement rates will not be adjusted: · upon the issuance of any shares of our common stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on our securities and the investment of additional optional amounts in shares of our common stock under any plan; · upon the issuance of any shares of our common stock or options or rights to purchase those shares pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by us or any of our subsidiaries; · upon the issuance of any shares of our common stock pursuant to any option, warrant, right or exercisable, exchangeable or convertible security outstanding as of the date the PEPS Units were first issued; · for a change in the par value or no par value of the common stock; or · for accumulated and unpaid dividends. We will be required, as soon as practicable after the settlement rate is adjusted, to provide written notice of the adjustment to the holders of PEPS Units. If an adjustment is made to each fixed settlement rate pursuant to paragraphs (1) through (6) of this “— Anti-dilution Adjustments” section, a corresponding adjustment also will be made to the applicable market value solely to determine which of the clauses of the definition of settlement rate will be applicable on the stock purchase date or any cash merger early settlement date, but there will be no adjustment to the applicable market value as such term is used as the denominator in the fraction described in clause (2) of the definition of settlement rate set forth in “— Purchase of Common Stock,” provided that if an event requiring an adjustment occurs on any trading day during the observation period, the VWAP calculated for each trading day before the event requiring an adjustment occurs will be adjusted in a manner inversely proportional to the adjustment to the fixed settlement rates. To the extent that we have a rights plan in effect upon a settlement of a purchase contract, you will receive, in addition to our common stock, the rights under the rights plan, unless, prior to the settlement of a purchase contract, the rights have separated from the common stock, in which case each fixed settlement rate will be adjusted at the time of separation as if we made a distribution to all holders of our common stock as described in clause (4) above, subject to readjustment in the event of the expiration, termination or redemption of such rightsexchange offer.

Tender and Exchange Offers. In the case that If a publicly-announced tender offer or exchange offer, or other repurchase offer made by us the Company or any subsidiary of its Affiliates for all or the Common Stock (other than a Reorganization) shall be consummated, to the extent that the cash and Fair Market Value of any portion other consideration included in the payment per share of our common stock shall expire Common Stock exceeds the average of the Fair Market Values of the Common Stock over the ten (10) consecutive Trading Day period ending on, and including, the tenth (10th) Trading Day immediately following the date on which such tender or exchange offer (as amended through is consummated, then the expiration thereof) Exercise Price and the Warrant Share Number shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of the tender offer or exchange offer) of purchased shares) of an aggregate consideration having a fair market value per share of our common stock that exceeds the VWAP on the trading day next succeeding the last date on which tenders or exchanges may be made adjusted pursuant to such tender offer or exchange offer, then, immediately prior to the opening formulas below; provided that the Exercise Price shall not be increased (and Warrant Share Number shall not be decreased) as a result of business on the second business day after the date of the last time (which we refer to as the “expiration time”) tenders or exchanges could have been made pursuant to such tender offer or exchange offer (as amended through the expiration thereofthis Section 4.01(e), each fixed settlement rate . Such adjustments shall be increased by dividing: · each fixed settlement rate immediately prior to determined at the close of business on the date of the expiration time by · a fraction tenth (A10th) the numerator of which shall be equal to (x) the product of (i) the current market price on Trading Day immediately following the date of the expiration time and (ii) the number of shares of common stock outstanding (including any tendered or exchanged shares) on the date of the expiration time less (y) the amount of cash consideration plus the fair market value of the aggregate non-cash consideration payable to stockholders pursuant to the which such tender offer or exchange offer (assuming the acceptanceis consummated, up to any maximum specified in the terms of the tender offer or exchange offer, of purchased shares), and (B) the denominator of which but shall be equal to the product of (x) the current market price on the date of the expiration time and (y) the result of (i) the number of shares of our common stock outstanding (including any tendered or exchanged shares) on the date of the expiration time less (ii) the number of all shares validly tendered, not withdrawn and accepted for payment on the date of the expiration time (such validly tendered or exchanged shares, up to any such maximum, being referred to as the “purchased shares”). The “current market price” per share of our common stock or any other security on any day means the average VWAP for the 20 consecutive trading days preceding the earlier of the day preceding the day in question and the day before the “ex date” with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term “ex date,” when used with respect to any issuance or distribution, means the first date on which our common stock or such other security, as applicable, trades, regular way, on the principal U.S. securities exchange or quotation system on which our common stock or such other security, as applicable, is listed or quoted at that time, without the right to receive the issuance or distribution. Reorganization Events. The following events are defined as “reorganization events”: · any consolidation or merger of Xxxxxx Xxxxxxx with or into another person or of another person with or into Xxxxxx Xxxxxxx; or · any sale, transfer, lease or conveyance to another person of the property of Xxxxxx Xxxxxxx as an entirety or substantially as an entirety; or · any statutory share exchange of Xxxxxx Xxxxxxx with another person (other than in connection with a merger or acquisition); or · any liquidation, dissolution or termination of Xxxxxx Xxxxxxx in each case in which holders of our common stock would be entitled to receive cash, securities or other property for their shares of common stock. Upon a reorganization event, each stock purchase contract shall thereafter, in lieu of a variable number of shares of our common stock, be settled by delivery of exchange property units. An “exchange property unit” represents the right to receive the kind and amount of securities, cash and other property receivable in such reorganization event (without any interest thereon, and without any right to dividends or distribution thereon which have a record date that is prior to the applicable settlement date) per share of our common stock by a holder of common stock that is not a person with which we are consolidated or into which we are merged or which merged into us or to which such sale or transfer was made, as the case may be (we refer to any such person as a “constituent person”), or an affiliate of a constituent person to the extent such reorganization event provides for different treatment of common stock held by our affiliates and non-affiliates. In the event all holders of our common stock (other than any constitutent person and affiliates thereof) do not receive the same form of consideration to be received in such transaction, the exchange property unit that holders of the Corporate Units or Treasury Units will be entitled to receive will be deemed to be the weighted average of the types and amounts of consideration received by the holders of our common stock that affirmatively make an election (or of all such holders if none make an election). In the event of such a reorganization event, the person formed by such consolidation, or merger or the person which acquires our assets shall execute and deliver to the transfer agent an agreement providing that the holder of each PEPS Unit that remains outstanding after the reorganization event (if any) shall have the rights described in the preceding paragraph. Such supplemental agreement shall provide for adjustments to the amount of any securities constituting all or a portion of an exchange property unit which, for events subsequent to the become effective date of such reorganization event, shall be as nearly equivalent as may be practicable to the adjustments provided for in this “—Anti-dilution Adjustments” section. The provisions described in the preceding two paragraphs shall similarly apply to successive reorganization events. Holders have the right to settle their obligations under the PEPS Units early in the event of certain cash mergers as described above under “—Early Settlement Upon Cash Merger.” You may be treated as receiving a constructive distribution from us with respect to the stock purchase contract if under applicable Treasury regulations (1) the settlement rate is adjusted (or fails to be adjusted) and, as a result of the adjustment (or failure to adjust), your proportionate interest in our assets or earnings and profits is increased, and (2) the adjustment (or failure to adjust) is not made pursuant to a bona fide, reasonable anti-dilution formula. Thus, under certain circumstances, an increase in (or a failure to decrease) the settlement rate might give rise to a taxable dividend to you even though you will not receive any cash in connection with the increase in (or failure to decrease) the settlement rate. In addition, non-U.S. holders of PEPS Units may, in certain circumstances, be deemed to have received a distribution subject to U.S. federal withholding tax. In addition, we may increase the settlement rate if our board of directors deems it advisable to avoid or diminish any income tax to holders of our common stock resulting from any dividend or distribution of shares (or rights to acquire shares) or from any event treated as a dividend or distribution for income tax purposes or for any other reasons. Adjustments to the settlement rate will be calculated to the nearest 1/10,000th of a share. No adjustment in the settlement rate will be required unless the adjustment would require an increase or decrease of at least one percent in the settlement rate. If any adjustment is not required to be made because it would not change the settlement rate by at least one percent, then the adjustment will be carried forward and taken into account in any subsequent adjustment, provided that effect shall be given to anti-dilution adjustments not later than the stock purchase date for a PEPS Unit. No adjustment to the settlement rate need be made if holders may participate in the transaction that would otherwise give rise to an adjustment, so long as the distributed assets or securities the holders would receive upon settlement of the PEPS Units, if convertible, exchangeable, or exercisable, are convertible, exchangeable or exercisable, as applicable, without any loss of rights or privileges for a period of at least 60 days following settlement of the PEPS Units. The fixed settlement rates will not be adjusted: · upon the issuance of any shares of our common stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on our securities and the investment of additional optional amounts in shares of our common stock under any plan; · upon the issuance of any shares of our common stock or options or rights to purchase those shares pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by us or any of our subsidiaries; · upon the issuance of any shares of our common stock pursuant to any option, warrant, right or exercisable, exchangeable or convertible security outstanding as of the date on which such tender or exchange offer expires. Na = Nb x (Oa x M) + C Ob x M Ea = Eb x Ob x M (Oa x M) + C Where: Nb = Warrant Share Number before the PEPS Units were first issued; · for a change in adjustment Na = Warrant Share Number after the par value or no par value adjustment Eb = Exercise Price before the adjustment Ea = Exercise Price after the adjustment M = Average of the common stock; Fair Market Values of one share of Common Stock over the ten (10) consecutive Trading Day period ending on, and including, the tenth (10th) Trading Day immediately following the date on which such tender or · exchange offer is consummated C = Aggregate Fair Market Value of all cash and any other consideration paid or payable for accumulated and unpaid dividendsshares of Common Stock in such tender or exchange offer Ob = Number of shares of Common Stock outstanding immediately before giving effect to such tender or exchange offer Oa = Number of shares of Common Stock outstanding immediately after giving effect to such tender or exchange offer. We will be required, as soon as practicable If the Exercise Date for any exercise of Warrants occurs on or after the settlement rate is adjusted, to provide written notice of the adjustment to the holders of PEPS Units. If an adjustment is made to each fixed settlement rate pursuant to paragraphs (1) through (6) of this “— Anti-dilution Adjustments” section, a corresponding adjustment also will be made to the applicable market value solely to determine date on which of the clauses of the definition of settlement rate will be applicable on the stock purchase date such tender or any cash merger early settlement date, but there will be no adjustment to the applicable market value as such term is used as the denominator in the fraction described in clause (2) of the definition of settlement rate set forth in “— Purchase of Common Stock,” provided that if an event requiring an adjustment occurs on any trading day during the observation period, the VWAP calculated for each trading day before the event requiring an adjustment occurs will be adjusted in a manner inversely proportional to the adjustment to the fixed settlement rates. To the extent that we have a rights plan in effect upon a settlement of a purchase contract, you will receive, in addition to our common stock, the rights under the rights plan, unless, exchange offer expires and prior to the settlement tenth (10th) Trading Day immediately following the date on which such tender or exchange offer is consummated, references in this Section 4.01(e) to “tenth (10th) Trading Day immediately following the date on which such tender or exchange offer is consummated” shall be deemed replaced by references to such Exercise Date and references in this Section 4.01(e) to “ten (10)” shall be deemed replaced with such lesser number of a purchase contract, Trading Days as have elapsed between the rights have separated from the common stockdate on which such tender or exchange offer is consummated and such Exercise Date, in which case each fixed settlement rate will be adjusted at case, in determining the time of separation as if we made a distribution to all holders of our common stock as described in clause (4) above, subject to readjustment in the event of the expiration, termination or redemption of such rightsExercise Price and Warrant Share Number.

Tender and Exchange Offers. In If the case that a tender offer or exchange offer made by us Company or any subsidiary for all or any portion of our common stock shall expire and such its Subsidiaries makes a payment in respect of a tender or exchange offer (as amended through for the expiration thereof) shall require Common Shares, to the extent that the cash and value of any other consideration included in the payment to stockholders (based on per Common Share exceeds the acceptance (up to any maximum specified in the terms average of the tender offer or exchange offerLast Reported Sale Prices of the Common Shares over the 10 consecutive Trading Day period (the “TO Valuation Period”) of purchased shares) of an aggregate consideration having a fair market value per share of our common stock that exceeds commencing on, and including, the VWAP on the trading day Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer, thenthe Target Price shall be decreased based on the following formula: TP1 = TP0 × OS0 × SP1AC + (SP1 × OS1) where, TP0 = the Target Price in effect immediately prior to the opening open of business on the second first Trading Day of the TO Valuation Period; TP1 = the Target Price in effect immediately after the open of business day on the first Trading Day of the TO Valuation Period; AC = the aggregate value of all cash and any other consideration (as determined by the Board of Directors in good faith and in a commercially reasonable manner) paid or payable for Common Shares purchased in such tender or exchange offer; OS0 = the number of Common Shares outstanding immediately prior to the date such tender or exchange offer expires (prior to giving effect to the purchase of all Common Shares accepted for purchase or exchange in such tender or exchange offer); OS1 = the number of Common Shares outstanding immediately after the date of the last time (which we refer to as the “expiration time”) tenders or exchanges could have been made pursuant to such tender offer or exchange offer expires (as amended through after giving effect to the expiration thereofpurchase of all Common Shares accepted for purchase or exchange in such tender or exchange offer), each fixed settlement rate ; and SP1 = the average of the Last Reported Sale Prices over the TO Valuation Period. The adjustment to the Target Price under this Section 4(e) shall be increased by dividing: · each fixed settlement rate immediately prior to occur at the close of business on the date last day of the expiration time by · TO Valuation Period; provided that if the Outside Date occurs during the TO Valuation Period, for the purposes of determining the Target Price, a fraction (Areference to “10” in this Section 4(e) the numerator of which shall be equal to (x) deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the product of (i) the current market price on the date first day of the expiration time TO Valuation Period to, and (ii) including, the number of shares of common stock outstanding (including any tendered or exchanged shares) on Outside Date. To the date of the expiration time less (y) the amount of cash consideration plus the fair market value of the aggregate non-cash consideration payable to stockholders pursuant to the extent such tender offer or exchange offer (assuming the acceptance, up to any maximum specified in the terms of the tender offer or exchange offer, of purchased shares), and (B) the denominator of which shall be equal to the product of (x) the current market price on the date of the expiration time and (y) the result of (i) the number of shares of our common stock outstanding is announced but not consummated (including any tendered or exchanged shares) on the date of the expiration time less (ii) the number of all shares validly tendered, not withdrawn and accepted for payment on the date of the expiration time (such validly tendered or exchanged shares, up to any such maximum, being referred to as the “purchased shares”). The “current market price” per share of our common stock or any other security on any day means the average VWAP for the 20 consecutive trading days preceding the earlier of the day preceding the day in question and the day before the “ex date” with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term “ex date,” when used with respect to any issuance or distribution, means the first date on which our common stock or such other security, as applicable, trades, regular way, on the principal U.S. securities exchange or quotation system on which our common stock or such other security, as applicable, is listed or quoted at that time, without the right to receive the issuance or distribution. Reorganization Events. The following events are defined as “reorganization events”: · any consolidation or merger of Xxxxxx Xxxxxxx with or into another person or of another person with or into Xxxxxx Xxxxxxx; or · any sale, transfer, lease or conveyance to another person of the property of Xxxxxx Xxxxxxx as an entirety or substantially as an entirety; or · any statutory share exchange of Xxxxxx Xxxxxxx with another person (other than in connection with a merger or acquisition); or · any liquidation, dissolution or termination of Xxxxxx Xxxxxxx in each case in which holders of our common stock would be entitled to receive cash, securities or other property for their shares of common stock. Upon a reorganization event, each stock purchase contract shall thereafter, in lieu of a variable number of shares of our common stock, be settled by delivery of exchange property units. An “exchange property unit” represents the right to receive the kind and amount of securities, cash and other property receivable in such reorganization event (without any interest thereon, and without any right to dividends or distribution thereon which have a record date that is prior to the applicable settlement date) per share of our common stock by a holder of common stock that is not a person with which we are consolidated or into which we are merged or which merged into us or to which such sale or transfer was made, as the case may be (we refer to any such person as a “constituent person”), or an affiliate of a constituent person to the extent such reorganization event provides for different treatment of common stock held by our affiliates and non-affiliates. In the event all holders of our common stock (other than any constitutent person and affiliates thereof) do not receive the same form of consideration to be received in such transaction, the exchange property unit that holders of the Corporate Units or Treasury Units will be entitled to receive will be deemed to be the weighted average of the types and amounts of consideration received by the holders of our common stock that affirmatively make an election (or of all such holders if none make an election). In the event of such a reorganization event, the person formed by such consolidation, or merger or the person which acquires our assets shall execute and deliver to the transfer agent an agreement providing that the holder of each PEPS Unit that remains outstanding after the reorganization event (if any) shall have the rights described in the preceding paragraph. Such supplemental agreement shall provide for adjustments to the amount of any securities constituting all or a portion of an exchange property unit which, for events subsequent to the effective date of such reorganization event, shall be as nearly equivalent as may be practicable to the adjustments provided for in this “—Anti-dilution Adjustments” section. The provisions described in the preceding two paragraphs shall similarly apply to successive reorganization events. Holders have the right to settle their obligations under the PEPS Units early in the event of certain cash mergers as described above under “—Early Settlement Upon Cash Merger.” You may be treated as receiving a constructive distribution from us with respect to the stock purchase contract if under applicable Treasury regulations (1) the settlement rate is adjusted (or fails to be adjusted) and, as a result of being precluded from consummating such tender or exchange offer under applicable law), or any purchases or exchanges of Common Shares in such tender or exchange offer are rescinded, the Target Price will be readjusted to the Target Price that would then be in effect had the adjustment (been made on the basis of only the purchases or failure to adjust)exchanges of Common Shares, your proportionate interest in our assets or earnings and profits is increasedif any, actually made, and (2) the adjustment (or failure to adjust) is not made pursuant to a bona fide, reasonable anti-dilution formula. Thus, under certain circumstances, an increase in (or a failure to decrease) the settlement rate might give rise to a taxable dividend to you even though you will not receive any cash in connection with the increase in (or failure to decrease) the settlement rate. In addition, non-U.S. holders of PEPS Units mayrescinded, in certain circumstances, be deemed to have received a distribution subject to U.S. federal withholding tax. In addition, we may increase the settlement rate if our board of directors deems it advisable to avoid such tender or diminish any income tax to holders of our common stock resulting from any dividend or distribution of shares (or rights to acquire shares) or from any event treated as a dividend or distribution for income tax purposes or for any other reasons. Adjustments to the settlement rate will be calculated to the nearest 1/10,000th of a share. No adjustment in the settlement rate will be required unless the adjustment would require an increase or decrease of at least one percent in the settlement rate. If any adjustment is not required to be made because it would not change the settlement rate by at least one percent, then the adjustment will be carried forward and taken into account in any subsequent adjustment, provided that effect shall be given to anti-dilution adjustments not later than the stock purchase date for a PEPS Unit. No adjustment to the settlement rate need be made if holders may participate in the transaction that would otherwise give rise to an adjustment, so long as the distributed assets or securities the holders would receive upon settlement of the PEPS Units, if convertible, exchangeable, or exercisable, are convertible, exchangeable or exercisable, as applicable, without any loss of rights or privileges for a period of at least 60 days following settlement of the PEPS Units. The fixed settlement rates will not be adjusted: · upon the issuance of any shares of our common stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on our securities and the investment of additional optional amounts in shares of our common stock under any plan; · upon the issuance of any shares of our common stock or options or rights to purchase those shares pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by us or any of our subsidiaries; · upon the issuance of any shares of our common stock pursuant to any option, warrant, right or exercisable, exchangeable or convertible security outstanding as of the date the PEPS Units were first issued; · for a change in the par value or no par value of the common stock; or · for accumulated and unpaid dividends. We will be required, as soon as practicable after the settlement rate is adjusted, to provide written notice of the adjustment to the holders of PEPS Units. If an adjustment is made to each fixed settlement rate pursuant to paragraphs (1) through (6) of this “— Anti-dilution Adjustments” section, a corresponding adjustment also will be made to the applicable market value solely to determine which of the clauses of the definition of settlement rate will be applicable on the stock purchase date or any cash merger early settlement date, but there will be no adjustment to the applicable market value as such term is used as the denominator in the fraction described in clause (2) of the definition of settlement rate set forth in “— Purchase of Common Stock,” provided that if an event requiring an adjustment occurs on any trading day during the observation period, the VWAP calculated for each trading day before the event requiring an adjustment occurs will be adjusted in a manner inversely proportional to the adjustment to the fixed settlement rates. To the extent that we have a rights plan in effect upon a settlement of a purchase contract, you will receive, in addition to our common stock, the rights under the rights plan, unless, prior to the settlement of a purchase contract, the rights have separated from the common stock, in which case each fixed settlement rate will be adjusted at the time of separation as if we made a distribution to all holders of our common stock as described in clause (4) above, subject to readjustment in the event of the expiration, termination or redemption of such rightsexchange offer.

Tender and Exchange Offers. In If the case that a tender offer or exchange offer made by us Company or any subsidiary for all or any portion of our common stock shall expire and such its Subsidiaries makes a payment in respect of a tender or exchange offer (as amended through for the expiration thereof) shall require Common Shares, to the extent that the cash and value of any other consideration included in the payment to stockholders (based on per Common Share exceeds the acceptance (up to any maximum specified in the terms average of the tender offer or exchange offerLast Reported Sale Prices of the Common Shares over the 10 consecutive Trading Day period (the “TO Valuation Period”) of purchased shares) of an aggregate consideration having a fair market value per share of our common stock that exceeds commencing on, and including, the VWAP on the trading day Trading 1006107100v8 Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer, thenthe Target Price shall be decreased based on the following formula: TP1 = TP0 × OS0 × SP1AC + (SP1 × OS1) where, TP0 = the Target Price in effect immediately prior to the opening open of business on the second first Trading Day of the TO Valuation Period; TP1 = the Target Price in effect immediately after the open of business day on the first Trading Day of the TO Valuation Period; AC = the aggregate value of all cash and any other consideration (as determined by the Board of Directors in good faith and in a commercially reasonable manner) paid or payable for Common Shares purchased in such tender or exchange offer; OS0 = the number of Common Shares outstanding immediately prior to the date such tender or exchange offer expires (prior to giving effect to the purchase of all Common Shares accepted for purchase or exchange in such tender or exchange offer); OS1 = the number of Common Shares outstanding immediately after the date of the last time (which we refer to as the “expiration time”) tenders or exchanges could have been made pursuant to such tender offer or exchange offer expires (as amended through after giving effect to the expiration thereofpurchase of all Common Shares accepted for purchase or exchange in such tender or exchange offer), each fixed settlement rate ; and SP1 = the average of the Last Reported Sale Prices over the TO Valuation Period. The adjustment to the Target Price under this Section 4(e) shall be increased by dividing: · each fixed settlement rate immediately prior to occur at the close of business on the date last day of the expiration time by · TO Valuation Period; provided that if the Outside Date occurs during the TO Valuation Period, for the purposes of determining the Target Price, a fraction (Areference to “10” in this Section 4(e) the numerator of which shall be equal to (x) deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the product of (i) the current market price on the date first day of the expiration time TO Valuation Period to, and (ii) including, the number of shares of common stock outstanding (including any tendered or exchanged shares) on Outside Date. To the date of the expiration time less (y) the amount of cash consideration plus the fair market value of the aggregate non-cash consideration payable to stockholders pursuant to the extent such tender offer or exchange offer (assuming the acceptance, up to any maximum specified in the terms of the tender offer or exchange offer, of purchased shares), and (B) the denominator of which shall be equal to the product of (x) the current market price on the date of the expiration time and (y) the result of (i) the number of shares of our common stock outstanding is announced but not consummated (including any tendered or exchanged shares) on the date of the expiration time less (ii) the number of all shares validly tendered, not withdrawn and accepted for payment on the date of the expiration time (such validly tendered or exchanged shares, up to any such maximum, being referred to as the “purchased shares”). The “current market price” per share of our common stock or any other security on any day means the average VWAP for the 20 consecutive trading days preceding the earlier of the day preceding the day in question and the day before the “ex date” with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term “ex date,” when used with respect to any issuance or distribution, means the first date on which our common stock or such other security, as applicable, trades, regular way, on the principal U.S. securities exchange or quotation system on which our common stock or such other security, as applicable, is listed or quoted at that time, without the right to receive the issuance or distribution. Reorganization Events. The following events are defined as “reorganization events”: · any consolidation or merger of Xxxxxx Xxxxxxx with or into another person or of another person with or into Xxxxxx Xxxxxxx; or · any sale, transfer, lease or conveyance to another person of the property of Xxxxxx Xxxxxxx as an entirety or substantially as an entirety; or · any statutory share exchange of Xxxxxx Xxxxxxx with another person (other than in connection with a merger or acquisition); or · any liquidation, dissolution or termination of Xxxxxx Xxxxxxx in each case in which holders of our common stock would be entitled to receive cash, securities or other property for their shares of common stock. Upon a reorganization event, each stock purchase contract shall thereafter, in lieu of a variable number of shares of our common stock, be settled by delivery of exchange property units. An “exchange property unit” represents the right to receive the kind and amount of securities, cash and other property receivable in such reorganization event (without any interest thereon, and without any right to dividends or distribution thereon which have a record date that is prior to the applicable settlement date) per share of our common stock by a holder of common stock that is not a person with which we are consolidated or into which we are merged or which merged into us or to which such sale or transfer was made, as the case may be (we refer to any such person as a “constituent person”), or an affiliate of a constituent person to the extent such reorganization event provides for different treatment of common stock held by our affiliates and non-affiliates. In the event all holders of our common stock (other than any constitutent person and affiliates thereof) do not receive the same form of consideration to be received in such transaction, the exchange property unit that holders of the Corporate Units or Treasury Units will be entitled to receive will be deemed to be the weighted average of the types and amounts of consideration received by the holders of our common stock that affirmatively make an election (or of all such holders if none make an election). In the event of such a reorganization event, the person formed by such consolidation, or merger or the person which acquires our assets shall execute and deliver to the transfer agent an agreement providing that the holder of each PEPS Unit that remains outstanding after the reorganization event (if any) shall have the rights described in the preceding paragraph. Such supplemental agreement shall provide for adjustments to the amount of any securities constituting all or a portion of an exchange property unit which, for events subsequent to the effective date of such reorganization event, shall be as nearly equivalent as may be practicable to the adjustments provided for in this “—Anti-dilution Adjustments” section. The provisions described in the preceding two paragraphs shall similarly apply to successive reorganization events. Holders have the right to settle their obligations under the PEPS Units early in the event of certain cash mergers as described above under “—Early Settlement Upon Cash Merger.” You may be treated as receiving a constructive distribution from us with respect to the stock purchase contract if under applicable Treasury regulations (1) the settlement rate is adjusted (or fails to be adjusted) and, as a result of being precluded from consummating such tender or exchange offer under applicable law), or any purchases or exchanges of Common Shares in such tender or exchange offer are rescinded, the Target Price will be readjusted to the Target Price that would then be in effect had the adjustment (been made on the basis of only the purchases or failure to adjust)exchanges of Common Shares, your proportionate interest in our assets or earnings and profits is increasedif any, actually made, and (2) the adjustment (or failure to adjust) is not made pursuant to a bona fide, reasonable anti-dilution formula. Thus, under certain circumstances, an increase in (or a failure to decrease) the settlement rate might give rise to a taxable dividend to you even though you will not receive any cash in connection with the increase in (or failure to decrease) the settlement rate. In addition, non-U.S. holders of PEPS Units mayrescinded, in certain circumstances, be deemed to have received a distribution subject to U.S. federal withholding tax. In addition, we may increase the settlement rate if our board of directors deems it advisable to avoid such tender or diminish any income tax to holders of our common stock resulting from any dividend or distribution of shares (or rights to acquire shares) or from any event treated as a dividend or distribution for income tax purposes or for any other reasons. Adjustments to the settlement rate will be calculated to the nearest 1/10,000th of a share. No adjustment in the settlement rate will be required unless the adjustment would require an increase or decrease of at least one percent in the settlement rate. If any adjustment is not required to be made because it would not change the settlement rate by at least one percent, then the adjustment will be carried forward and taken into account in any subsequent adjustment, provided that effect shall be given to anti-dilution adjustments not later than the stock purchase date for a PEPS Unit. No adjustment to the settlement rate need be made if holders may participate in the transaction that would otherwise give rise to an adjustment, so long as the distributed assets or securities the holders would receive upon settlement of the PEPS Units, if convertible, exchangeable, or exercisable, are convertible, exchangeable or exercisable, as applicable, without any loss of rights or privileges for a period of at least 60 days following settlement of the PEPS Units. The fixed settlement rates will not be adjusted: · upon the issuance of any shares of our common stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on our securities and the investment of additional optional amounts in shares of our common stock under any plan; · upon the issuance of any shares of our common stock or options or rights to purchase those shares pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by us or any of our subsidiaries; · upon the issuance of any shares of our common stock pursuant to any option, warrant, right or exercisable, exchangeable or convertible security outstanding as of the date the PEPS Units were first issued; · for a change in the par value or no par value of the common stock; or · for accumulated and unpaid dividends. We will be required, as soon as practicable after the settlement rate is adjusted, to provide written notice of the adjustment to the holders of PEPS Units. If an adjustment is made to each fixed settlement rate pursuant to paragraphs (1) through (6) of this “— Anti-dilution Adjustments” section, a corresponding adjustment also will be made to the applicable market value solely to determine which of the clauses of the definition of settlement rate will be applicable on the stock purchase date or any cash merger early settlement date, but there will be no adjustment to the applicable market value as such term is used as the denominator in the fraction described in clause (2) of the definition of settlement rate set forth in “— Purchase of Common Stock,” provided that if an event requiring an adjustment occurs on any trading day during the observation period, the VWAP calculated for each trading day before the event requiring an adjustment occurs will be adjusted in a manner inversely proportional to the adjustment to the fixed settlement rates. To the extent that we have a rights plan in effect upon a settlement of a purchase contract, you will receive, in addition to our common stock, the rights under the rights plan, unless, prior to the settlement of a purchase contract, the rights have separated from the common stock, in which case each fixed settlement rate will be adjusted at the time of separation as if we made a distribution to all holders of our common stock as described in clause (4) above, subject to readjustment in the event of the expiration, termination or redemption of such rightsexchange offer.

Tender and Exchange Offers. In the case that If a publicly-announced tender offer or exchange offer, or other repurchase offer made by us the Company or any subsidiary of its Affiliates for all or the Common Shares (other than a Reorganization) shall be consummated, to the extent that the cash and Fair Market Value of any portion other consideration included in the payment per Common Share exceeds the average of our common stock shall expire the Fair Market Values of the Common Shares over the ten (10) consecutive Trading Day period ending on, and including, the tenth (10th) Trading Day immediately following the date on which such tender or exchange offer (as amended through is consummated, then the expiration thereof) Warrant Share Number shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of the tender offer or exchange offer) of purchased shares) of an aggregate consideration having a fair market value per share of our common stock that exceeds the VWAP on the trading day next succeeding the last date on which tenders or exchanges may be made adjusted pursuant to such tender offer or exchange offer, then, immediately prior to the opening formula below; provided that the Warrant Share Number shall not be decreased as a result of business on the second business day after the date of the last time (which we refer to as the “expiration time”) tenders or exchanges could have been made pursuant to such tender offer or exchange offer (as amended through the expiration thereofthis Section 4.01(d), each fixed settlement rate . Such adjustment shall be increased by dividing: · each fixed settlement rate immediately prior to determined at the close of business on the date of the expiration time by · a fraction tenth (A10th) the numerator of which shall be equal to (x) the product of (i) the current market price on Trading Day immediately following the date of the expiration time and (ii) the number of shares of common stock outstanding (including any tendered or exchanged shares) on the date of the expiration time less (y) the amount of cash consideration plus the fair market value of the aggregate non-cash consideration payable to stockholders pursuant to the which such tender offer or exchange offer (assuming the acceptanceis consummated, up to any maximum specified in the terms of the tender offer or exchange offer, of purchased shares), and (B) the denominator of which but shall be equal to the product of (x) the current market price on the date of the expiration time and (y) the result of (i) the number of shares of our common stock outstanding (including any tendered or exchanged shares) on the date of the expiration time less (ii) the number of all shares validly tendered, not withdrawn and accepted for payment on the date of the expiration time (such validly tendered or exchanged shares, up to any such maximum, being referred to as the “purchased shares”). The “current market price” per share of our common stock or any other security on any day means the average VWAP for the 20 consecutive trading days preceding the earlier of the day preceding the day in question and the day before the “ex date” with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term “ex date,” when used with respect to any issuance or distribution, means the first date on which our common stock or such other security, as applicable, trades, regular way, on the principal U.S. securities exchange or quotation system on which our common stock or such other security, as applicable, is listed or quoted at that time, without the right to receive the issuance or distribution. Reorganization Events. The following events are defined as “reorganization events”: · any consolidation or merger of Xxxxxx Xxxxxxx with or into another person or of another person with or into Xxxxxx Xxxxxxx; or · any sale, transfer, lease or conveyance to another person of the property of Xxxxxx Xxxxxxx as an entirety or substantially as an entirety; or · any statutory share exchange of Xxxxxx Xxxxxxx with another person (other than in connection with a merger or acquisition); or · any liquidation, dissolution or termination of Xxxxxx Xxxxxxx in each case in which holders of our common stock would be entitled to receive cash, securities or other property for their shares of common stock. Upon a reorganization event, each stock purchase contract shall thereafter, in lieu of a variable number of shares of our common stock, be settled by delivery of exchange property units. An “exchange property unit” represents the right to receive the kind and amount of securities, cash and other property receivable in such reorganization event (without any interest thereon, and without any right to dividends or distribution thereon which have a record date that is prior to the applicable settlement date) per share of our common stock by a holder of common stock that is not a person with which we are consolidated or into which we are merged or which merged into us or to which such sale or transfer was made, as the case may be (we refer to any such person as a “constituent person”), or an affiliate of a constituent person to the extent such reorganization event provides for different treatment of common stock held by our affiliates and non-affiliates. In the event all holders of our common stock (other than any constitutent person and affiliates thereof) do not receive the same form of consideration to be received in such transaction, the exchange property unit that holders of the Corporate Units or Treasury Units will be entitled to receive will be deemed to be the weighted average of the types and amounts of consideration received by the holders of our common stock that affirmatively make an election (or of all such holders if none make an election). In the event of such a reorganization event, the person formed by such consolidation, or merger or the person which acquires our assets shall execute and deliver to the transfer agent an agreement providing that the holder of each PEPS Unit that remains outstanding after the reorganization event (if any) shall have the rights described in the preceding paragraph. Such supplemental agreement shall provide for adjustments to the amount of any securities constituting all or a portion of an exchange property unit which, for events subsequent to the become effective date of such reorganization event, shall be as nearly equivalent as may be practicable to the adjustments provided for in this “—Anti-dilution Adjustments” section. The provisions described in the preceding two paragraphs shall similarly apply to successive reorganization events. Holders have the right to settle their obligations under the PEPS Units early in the event of certain cash mergers as described above under “—Early Settlement Upon Cash Merger.” You may be treated as receiving a constructive distribution from us with respect to the stock purchase contract if under applicable Treasury regulations (1) the settlement rate is adjusted (or fails to be adjusted) and, as a result of the adjustment (or failure to adjust), your proportionate interest in our assets or earnings and profits is increased, and (2) the adjustment (or failure to adjust) is not made pursuant to a bona fide, reasonable anti-dilution formula. Thus, under certain circumstances, an increase in (or a failure to decrease) the settlement rate might give rise to a taxable dividend to you even though you will not receive any cash in connection with the increase in (or failure to decrease) the settlement rate. In addition, non-U.S. holders of PEPS Units may, in certain circumstances, be deemed to have received a distribution subject to U.S. federal withholding tax. In addition, we may increase the settlement rate if our board of directors deems it advisable to avoid or diminish any income tax to holders of our common stock resulting from any dividend or distribution of shares (or rights to acquire shares) or from any event treated as a dividend or distribution for income tax purposes or for any other reasons. Adjustments to the settlement rate will be calculated to the nearest 1/10,000th of a share. No adjustment in the settlement rate will be required unless the adjustment would require an increase or decrease of at least one percent in the settlement rate. If any adjustment is not required to be made because it would not change the settlement rate by at least one percent, then the adjustment will be carried forward and taken into account in any subsequent adjustment, provided that effect shall be given to anti-dilution adjustments not later than the stock purchase date for a PEPS Unit. No adjustment to the settlement rate need be made if holders may participate in the transaction that would otherwise give rise to an adjustment, so long as the distributed assets or securities the holders would receive upon settlement of the PEPS Units, if convertible, exchangeable, or exercisable, are convertible, exchangeable or exercisable, as applicable, without any loss of rights or privileges for a period of at least 60 days following settlement of the PEPS Units. The fixed settlement rates will not be adjusted: · upon the issuance of any shares of our common stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on our securities and the investment of additional optional amounts in shares of our common stock under any plan; · upon the issuance of any shares of our common stock or options or rights to purchase those shares pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by us or any of our subsidiaries; · upon the issuance of any shares of our common stock pursuant to any option, warrant, right or exercisable, exchangeable or convertible security outstanding as of the date on which such tender or exchange offer expires. Na = Nb x (Oa x M) + C / Ob x M Where: Nb = Warrant Share Number before the PEPS Units were first issued; · for a change in adjustment Na = Warrant Share Number after the par value or no par value adjustment M = Average of the common stock; Fair Market Values of one Common Share over the ten (10) consecutive Trading Day period ending on, and including, the tenth (10th) Trading Day immediately following the date on which such tender or · exchange offer is consummated C = Aggregate Fair Market Value of all cash and any other consideration paid or payable for accumulated and unpaid dividendsCommon Shares in such tender or exchange offer Ob = Number of Common Shares outstanding immediately before giving effect to such tender or exchange offer Oa = Number of Common Shares outstanding immediately after giving effect to such tender or exchange offer. We will be required, as soon as practicable If the Exercise Date for any exercise of Warrants occurs on or after the settlement rate is adjusted, to provide written notice of the adjustment to the holders of PEPS Units. If an adjustment is made to each fixed settlement rate pursuant to paragraphs (1) through (6) of this “— Anti-dilution Adjustments” section, a corresponding adjustment also will be made to the applicable market value solely to determine date on which of the clauses of the definition of settlement rate will be applicable on the stock purchase date such tender or any cash merger early settlement date, but there will be no adjustment to the applicable market value as such term is used as the denominator in the fraction described in clause (2) of the definition of settlement rate set forth in “— Purchase of Common Stock,” provided that if an event requiring an adjustment occurs on any trading day during the observation period, the VWAP calculated for each trading day before the event requiring an adjustment occurs will be adjusted in a manner inversely proportional to the adjustment to the fixed settlement rates. To the extent that we have a rights plan in effect upon a settlement of a purchase contract, you will receive, in addition to our common stock, the rights under the rights plan, unless, exchange offer expires and prior to the settlement tenth (10th) Trading Day immediately following the date on which such tender or exchange offer is consummated, references in this Section 4.01(d) to “tenth (10th) Trading Day immediately following the date on which such tender or exchange offer is consummated” shall be deemed replaced by references to such Exercise Date and references in this Section 4.01(d) to “ten (10)” shall be deemed replaced with such lesser number of a purchase contract, Trading Days as have elapsed between the rights have separated from the common stockdate on which such tender or exchange offer is consummated and such Exercise Date, in which case each fixed settlement rate will be adjusted at case, in determining the time of separation as if we made a distribution to all holders of our common stock as described in clause (4) above, subject to readjustment in the event of the expiration, termination or redemption of such rightsWarrant Share Number.

Tender and Exchange Offers. In the case that If a publicly-announced tender offer or exchange offer made by us the Company or any subsidiary of its Subsidiaries for all or the Common Stock (other than a Reorganization) shall be consummated, to the extent that the cash and Fair Market Value of any portion other consideration included in the payment per share of our common stock shall expire Common Stock exceeds the average of the Fair Market Values of one share of Common Stock over the 10 consecutive Trading Day period ending on, and including, the tenth Trading Day immediately following the date on which such tender or exchange offer (as amended through is consummated, then the expiration thereof) Exercise Price and the Warrant Share Number shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of the tender offer or exchange offer) of purchased shares) of an aggregate consideration having a fair market value per share of our common stock that exceeds the VWAP on the trading day next succeeding the last date on which tenders or exchanges may be made adjusted pursuant to such tender offer or exchange offer, then, immediately prior to the opening formulas below; provided that the Exercise Price shall not be increased (and Warrant Share Number shall not be decreased) as a result of business on the second business day after the date of the last time (which we refer to as the “expiration time”) tenders or exchanges could have been made pursuant to such tender offer or exchange offer (as amended through the expiration thereofthis Section 13(E), each fixed settlement rate . Such adjustments shall be increased by dividing: · each fixed settlement rate immediately prior to determined at the close of business on the date of the expiration time by · a fraction (A) the numerator of which shall be equal to (x) the product of (i) the current market price on tenth Trading Day immediately following the date of the expiration time and (ii) the number of shares of common stock outstanding (including any tendered or exchanged shares) on the date of the expiration time less (y) the amount of cash consideration plus the fair market value of the aggregate non-cash consideration payable to stockholders pursuant to the which such tender offer or exchange offer (assuming the acceptanceis consummated, up to any maximum specified in the terms of the tender offer or exchange offer, of purchased shares), and (B) the denominator of which but shall be equal to the product of (x) the current market price on the date of the expiration time and (y) the result of (i) the number of shares of our common stock outstanding (including any tendered or exchanged shares) on the date of the expiration time less (ii) the number of all shares validly tendered, not withdrawn and accepted for payment on the date of the expiration time (such validly tendered or exchanged shares, up to any such maximum, being referred to as the “purchased shares”). The “current market price” per share of our common stock or any other security on any day means the average VWAP for the 20 consecutive trading days preceding the earlier of the day preceding the day in question and the day before the “ex date” with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term “ex date,” when used with respect to any issuance or distribution, means the first date on which our common stock or such other security, as applicable, trades, regular way, on the principal U.S. securities exchange or quotation system on which our common stock or such other security, as applicable, is listed or quoted at that time, without the right to receive the issuance or distribution. Reorganization Events. The following events are defined as “reorganization events”: · any consolidation or merger of Xxxxxx Xxxxxxx with or into another person or of another person with or into Xxxxxx Xxxxxxx; or · any sale, transfer, lease or conveyance to another person of the property of Xxxxxx Xxxxxxx as an entirety or substantially as an entirety; or · any statutory share exchange of Xxxxxx Xxxxxxx with another person (other than in connection with a merger or acquisition); or · any liquidation, dissolution or termination of Xxxxxx Xxxxxxx in each case in which holders of our common stock would be entitled to receive cash, securities or other property for their shares of common stock. Upon a reorganization event, each stock purchase contract shall thereafter, in lieu of a variable number of shares of our common stock, be settled by delivery of exchange property units. An “exchange property unit” represents the right to receive the kind and amount of securities, cash and other property receivable in such reorganization event (without any interest thereon, and without any right to dividends or distribution thereon which have a record date that is prior to the applicable settlement date) per share of our common stock by a holder of common stock that is not a person with which we are consolidated or into which we are merged or which merged into us or to which such sale or transfer was made, as the case may be (we refer to any such person as a “constituent person”), or an affiliate of a constituent person to the extent such reorganization event provides for different treatment of common stock held by our affiliates and non-affiliates. In the event all holders of our common stock (other than any constitutent person and affiliates thereof) do not receive the same form of consideration to be received in such transaction, the exchange property unit that holders of the Corporate Units or Treasury Units will be entitled to receive will be deemed to be the weighted average of the types and amounts of consideration received by the holders of our common stock that affirmatively make an election (or of all such holders if none make an election). In the event of such a reorganization event, the person formed by such consolidation, or merger or the person which acquires our assets shall execute and deliver to the transfer agent an agreement providing that the holder of each PEPS Unit that remains outstanding after the reorganization event (if any) shall have the rights described in the preceding paragraph. Such supplemental agreement shall provide for adjustments to the amount of any securities constituting all or a portion of an exchange property unit which, for events subsequent to the become effective date of such reorganization event, shall be as nearly equivalent as may be practicable to the adjustments provided for in this “—Anti-dilution Adjustments” section. The provisions described in the preceding two paragraphs shall similarly apply to successive reorganization events. Holders have the right to settle their obligations under the PEPS Units early in the event of certain cash mergers as described above under “—Early Settlement Upon Cash Merger.” You may be treated as receiving a constructive distribution from us with respect to the stock purchase contract if under applicable Treasury regulations (1) the settlement rate is adjusted (or fails to be adjusted) and, as a result of the adjustment (or failure to adjust), your proportionate interest in our assets or earnings and profits is increased, and (2) the adjustment (or failure to adjust) is not made pursuant to a bona fide, reasonable anti-dilution formula. Thus, under certain circumstances, an increase in (or a failure to decrease) the settlement rate might give rise to a taxable dividend to you even though you will not receive any cash in connection with the increase in (or failure to decrease) the settlement rate. In addition, non-U.S. holders of PEPS Units may, in certain circumstances, be deemed to have received a distribution subject to U.S. federal withholding tax. In addition, we may increase the settlement rate if our board of directors deems it advisable to avoid or diminish any income tax to holders of our common stock resulting from any dividend or distribution of shares (or rights to acquire shares) or from any event treated as a dividend or distribution for income tax purposes or for any other reasons. Adjustments to the settlement rate will be calculated to the nearest 1/10,000th of a share. No adjustment in the settlement rate will be required unless the adjustment would require an increase or decrease of at least one percent in the settlement rate. If any adjustment is not required to be made because it would not change the settlement rate by at least one percent, then the adjustment will be carried forward and taken into account in any subsequent adjustment, provided that effect shall be given to anti-dilution adjustments not later than the stock purchase date for a PEPS Unit. No adjustment to the settlement rate need be made if holders may participate in the transaction that would otherwise give rise to an adjustment, so long as the distributed assets or securities the holders would receive upon settlement of the PEPS Units, if convertible, exchangeable, or exercisable, are convertible, exchangeable or exercisable, as applicable, without any loss of rights or privileges for a period of at least 60 days following settlement of the PEPS Units. The fixed settlement rates will not be adjusted: · upon the issuance of any shares of our common stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on our securities and the investment of additional optional amounts in shares of our common stock under any plan; · upon the issuance of any shares of our common stock or options or rights to purchase those shares pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by us or any of our subsidiaries; · upon the issuance of any shares of our common stock pursuant to any option, warrant, right or exercisable, exchangeable or convertible security outstanding as of the date on which such tender or exchange offer expires. Ua = Ub x (Oa x M) + E Ob x M Pa = Pb x Ob x M (Oa x M) + E Where: Ub = Warrant Share Number before the PEPS Units were first issued; · for a change in adjustment Ua = Warrant Share Number after the par value or no par value adjustment Pb = Exercise Price before the adjustment Pa = Exercise Price after the adjustment M = Average of the common stock; Fair Market Values of one share of Common Stock over the 10 consecutive Trading Day period ending on, and including, the tenth Trading Day immediately following the date on which such tender or · exchange offer is consummated E = Aggregate Fair Market Value of all cash and any other consideration paid or payable for accumulated and unpaid dividends. We will be required, as soon as practicable shares of Common Stock in such tender or exchange offer Ob = Number of shares of Common Stock outstanding immediately before giving effect to such tender or exchange offer Oa = Number of shares of Common Stock outstanding immediately after giving effect to such tender or exchange offer If the Determination Date for any exercise of Warrants occurs on or after the settlement rate is adjusted, to provide written notice of the adjustment to the holders of PEPS Units. If an adjustment is made to each fixed settlement rate pursuant to paragraphs (1) through (6) of this “— Anti-dilution Adjustments” section, a corresponding adjustment also will be made to the applicable market value solely to determine date on which of the clauses of the definition of settlement rate will be applicable on the stock purchase date such tender or any cash merger early settlement date, but there will be no adjustment to the applicable market value as such term is used as the denominator in the fraction described in clause (2) of the definition of settlement rate set forth in “— Purchase of Common Stock,” provided that if an event requiring an adjustment occurs on any trading day during the observation period, the VWAP calculated for each trading day before the event requiring an adjustment occurs will be adjusted in a manner inversely proportional to the adjustment to the fixed settlement rates. To the extent that we have a rights plan in effect upon a settlement of a purchase contract, you will receive, in addition to our common stock, the rights under the rights plan, unless, exchange offer expires and prior to the settlement tenth Trading Day immediately following the date on which such tender or exchange offer is consummated, references in this Section 13(E) to “tenth Trading Day immediately following the date on which such tender or exchange offer is consummated” shall be deemed replaced by references to such Determination Date and references in this Section 13(E) to “10” shall be deemed replaced with such lesser number of a purchase contract, Trading Days as have elapsed between the rights have separated from the common stockdate on which such tender or exchange offer is consummated and such Determination Date, in which case each fixed settlement rate will be adjusted at case, in determining the time of separation as if we made a distribution to all holders of our common stock as described in clause (4) above, subject to readjustment in the event of the expiration, termination or redemption of such rightsExercise Price and Warrant Share Number.

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