Common use of Treatment of Warrant Upon Acquisition of Company Clause in Contracts

Treatment of Warrant Upon Acquisition of Company. Upon the closing of any Acquisition, without limiting or prejudicing Holder’s right to convert this Warrant under Section 1.3 or exercise its “put” rights under Section 1.8 (in each case with respect to the Warrant Stock that may then be converted or put) the surviving entity shall, as a condition to the Acquisition, either (i) assume the obligations under this Warrant, then this Warrant shall be convertible into the same securities as would be payable for the shares of Warrant Stock issuable upon conversion of the unconverted portion of this Warrant as if such shares of Warrant Stock were outstanding on the record date for the Acquisition (and the Exchange Price and/or number of shares of Warrant Stock shall be adjusted accordingly); or (ii) the Company or other surviving entity in such Acquisition shall, upon initial closing of such Acquisition purchase this Warrant at its “Fair Value” (the “Purchase Price”). For purposes hereof, “Fair Value” means that value determined by the parties using a Black-Scholes Option-Pricing Model (the “Black-Scholes Calculation”) with the following assumptions: (A) a risk-free interest rate equal to the risk-free interest rate at the time of the closing of the Acquisition (or as close thereto as practicable), (B) a contractual life of the Warrant equal to the remaining term of this Warrant as of the date of the announcement of the Acquisition, (C) an annual dividend yield equal to dividends payable or declared on the underlying shares of Warrant Stock (including securities into which the shares of Warrant Stock may be convertible) during the term of this Warrant (calculated on an annual basis), and (D) a volatility factor of the expected market price of the Company’s Shares comprised of: (1) if the Company is publicly traded on a national securities exchange, its volatility over the one year period ending on the day prior to the announcement of the Acquisition, (2) if the Shares are traded over-the-counter, its volatility over the one year period ending on the day prior to the announcement of the Acquisition, or (3) if the Company is a non-public company, the volatility, over the one year period prior to the Acquisition, of an average of publicly-traded companies in the same or similar industry to the Company with such companies having similar revenues. The Purchase Price determined in accordance with the above shall be paid upon the initial closing of the Acquisition and shall not be subject to any post-Acquisition closing contingencies or adjustments; provided, however, the parties may take such post-Acquisition closing contingencies or adjustments into account in determining the Purchase Price, and if the parties take any post-Acquisition closing contingencies or adjustments into account, then upon the partial or complete removal of those post-Acquisition closing contingencies or adjustments, a new Black-Scholes Calculation would be made using all of the same inputs except for the value of the Company’s Shares (as determined under subclause (D)), and any increase in Fair Value (and, correspondingly, Purchase Price), including, without limitation, as a result of any earn-out or escrowed consideration, would be paid in full to Holder immediately after those post-Acquisition closing contingencies or adjustments can be determined or achieved.

Treatment of Warrant Upon Acquisition of Company. (a) Upon the closing written request of any Acquisitionthe Company, without limiting ▇▇▇▇▇▇ agrees that, in the event of an Acquisition that is not an asset sale and in which the consideration is cash, Marketable Securities, or prejudicing Holder’s right to convert this Warrant under Section 1.3 or exercise its “put” rights under Section 1.8 (in each case with respect to the Warrant Stock that may then be converted or put) the surviving entity shall, as a condition to the Acquisitioncombination thereof, either (i) assume the obligations Holder shall exercise its conversion or purchase right under this Warrant, then this Warrant shall and such exercise will be convertible into deemed effective immediately prior to the same securities as would be payable for the shares consummation of Warrant Stock issuable upon conversion of the unconverted portion of this Warrant as if such shares of Warrant Stock were outstanding on the record date for the Acquisition (and the Exchange Price and/or number of shares of Warrant Stock shall be adjusted accordingly); or (ii) if Holder elects not to exercise the Warrant, this Warrant will expire upon the consummation of such Acquisition. The Company shall provide the Holder with written notice of its request relating to the foregoing (together with such reasonable information as the Holder may request in connection with such contemplated Acquisition giving rise to such notice), which is to be delivered to Holder not less than 20 days prior to the date on which the Company closes its books or other surviving entity takes a record with respect to determining rights to vote with respect to such Acquisition, provided in each case that such Acquisition shall, upon initial closing of such Acquisition purchase this Warrant at its “Fair Value” (the “Purchase Price”). For purposes hereof, “Fair Value” means that value determined by the parties using a Black-Scholes Option-Pricing Model (the “Black-Scholes Calculation”) with the following assumptions: (A) a risk-free interest rate equal information shall be made known to the risk-free interest rate at public prior to or in conjunction with such notice being provided to the time Holder. (b) Upon the written request of the closing Company, ▇▇▇▇▇▇ agrees that, in the event of the an Acquisition (that is an “arm’s length” sale of all or as close thereto as practicable), (B) a contractual life of the Warrant equal to the remaining term of this Warrant as of the date of the announcement of the Acquisition, (C) an annual dividend yield equal to dividends payable or declared on the underlying shares of Warrant Stock (including securities into which the shares of Warrant Stock may be convertible) during the term of this Warrant (calculated on an annual basis), and (D) a volatility factor of the expected market price substantially all of the Company’s Shares comprised of: assets on a consolidated basis to a third party that is not an Affiliate of the Company (1a “True Asset Sale”), either (a) Holder shall exercise its conversion or purchase right under this Warrant and such exercise will be deemed effective immediately prior to the consummation of such Acquisition or (b) if Holder elects not to exercise the Warrant, this Warrant will continue following closing of such True Asset Sale if the Company continues as a going concern following the closing of such True Asset Sale. The Company shall provide the Holder with written notice of its request relating to the foregoing (together with such reasonable information as the Holder may request in connection with such contemplated Acquisition giving rise to such notice), which is publicly traded on a national securities exchange, its volatility over the one year period ending on the day to be delivered to Holder not less than 20 days prior to the announcement of date on which the Company closes its books or takes a record with respect to determining rights to vote with respect to such Acquisition, (2) if provided in each case that such information shall be made known to the Shares are traded over-the-counter, its volatility over the one year period ending on the day public prior to the announcement of the Acquisition, or (3) if the Company is a non-public company, the volatility, over the one year period prior in conjunction with such notice being provided to the Acquisition, of an average of publicly-traded companies in the same or similar industry to the Company with such companies having similar revenues. The Purchase Price determined in accordance with the above shall be paid upon the initial closing of the Acquisition and shall not be subject to any post-Acquisition closing contingencies or adjustments; provided, however, the parties may take such post-Acquisition closing contingencies or adjustments into account in determining the Purchase Price, and if the parties take any post-Acquisition closing contingencies or adjustments into account, then upon the partial or complete removal of those post-Acquisition closing contingencies or adjustments, a new Black-Scholes Calculation would be made using all of the same inputs except for the value of the Company’s Shares (as determined under subclause (D)), and any increase in Fair Value (and, correspondingly, Purchase Price), including, without limitation, as a result of any earn-out or escrowed consideration, would be paid in full to Holder immediately after those post-Acquisition closing contingencies or adjustments can be determined or achievedHolder.

Treatment of Warrant Upon Acquisition of Company. Upon the closing of any Acquisition, without limiting or prejudicing Holder’s right to convert this Warrant under Section 1.3 or exercise its “put” rights under Section 1.8 (in each case with respect to the Warrant Stock that may then be converted or put) the surviving entity shall, as a condition to the Acquisition, either (i) assume Notwithstanding anything in Section 3(c) to the obligations under contrary, in the event of any Fundamental Transaction in which all of the Shares underlying the Warrant Shares, including the outstanding Common Stock and/or such other shares or securities issued pursuant to the adjustment provision set forth in Section 3(c) is converted into or exchanged for only the right to receive cash, which rights may include any future payments, earnouts or contingent value payment that is payable in cash or otherwise has a predetermined cash value (an “Acquisition” and such amount of cash, the “Cash Consideration”), (1) the Company shall provide the Warrantholder at least ten (10) Business Days’ advance written notice of the anticipated closing of such Acquisition, (2) subject to any other limitations on exercise in this Warrant, then the Warrantholder shall have the right to exercise this Warrant shall be convertible into the same securities as would be payable for the shares of Warrant Stock issuable upon conversion of the unconverted portion of this Warrant as if such shares of Warrant Stock were outstanding on the record date for the Acquisition (and the Exchange Price and/or number of shares of Warrant Stock shall be adjusted accordingly); or (ii) the Company or other surviving entity in such Acquisition shall, upon initial closing of such Acquisition purchase this Warrant at its “Fair Value” (the “Purchase Price”). For purposes hereof, “Fair Value” means that value determined by the parties using a Black-Scholes Option-Pricing Model (the “Black-Scholes Calculation”) with the following assumptions: (A) a risk-free interest rate equal to the risk-free interest rate at the time of the closing of the Acquisition (or as close thereto as practicable), (B) a contractual life of the Warrant equal to the remaining term of this Warrant as of the date of the announcement of the Acquisition, (C) an annual dividend yield equal to dividends payable or declared on the underlying shares of Warrant Stock (including securities into which the shares of Warrant Stock may be convertible) during the term of this Warrant (calculated on an annual basis), and (D) a volatility factor of the expected market price of the Company’s Shares comprised of: (1) if the Company is publicly traded on a national securities exchange, its volatility over the one year period ending on until the day prior to the announcement closing of the Acquisition, (2) if the Shares are traded over-the-counter, its volatility over the one year period ending on the day prior to the announcement of the Acquisition, or and (3) if the Company is a non-public companyWarrantholder shall not have elected to exercise this Warrant in full, the volatilityany outstanding Warrant Shares shall be treated in accordance with Section 3(d)(ii) below. (ii) If, over the one year period immediately prior to the Acquisition, the Cash Consideration payable upon conversion or exchange of one Warrant Share would be greater than the applicable Strike Price in effect on such date, then effective upon the consummation of the Acquisition, this Warrant shall automatically be deemed, on and as of such date, to be converted into only the right to receive an average amount in cash equal to (x) the excess of publicly-traded companies the Cash Consideration payable upon conversion or exchange of one Warrant Share over the Strike Price in effect on such date, multiplied by (y) the same or similar industry number of Warrant Shares for which this Warrant shall not have previously been exercised. If, immediately prior to the Company with Acquisition, the Cash Consideration payable upon conversion or exchange of one Warrant Share would be less than the applicable Strike Price in effect on such companies having similar revenuesdate, then effective upon the consummation of the Acquisition, this Warrant shall automatically be deemed on and as of such date to be cancelled for no consideration. The Purchase Price To the extent that the Cash Consideration includes any future or contingent payment, the fair market value of such future or contingent payment for the purpose of the determination of the Cash Consideration amount under this Section 3(d)(ii) shall be determined in accordance with the above shall be paid upon the initial closing of the Acquisition and shall not be subject to any post-Acquisition closing contingencies or adjustments; provided, however, the parties may take such post-Acquisition closing contingencies or adjustments into account in determining the Purchase Price, and if the parties take any post-Acquisition closing contingencies or adjustments into account, then upon the partial or complete removal of those post-Acquisition closing contingencies or adjustments, a new Black-Scholes Calculation would be made using all of the same inputs except for the value of good faith by the Company’s Shares Board of Directors. (as determined under subclause (D))iii) Notwithstanding anything in this Section 3(d) to the contrary, if the Company is permitted to exercise the Call Option with respect to an Acquisition and any increase in Fair Value (andso exercises the Call Option, correspondingly, Purchase Price), including, without limitation, as a result this Section 3(d) shall not apply to such Acquisition and the provisions of any earn-out or escrowed consideration, would be paid in full to Holder immediately after those post-Acquisition closing contingencies or adjustments can be determined or achievedSection 5 shall instead apply.

Treatment of Warrant Upon Acquisition of Company. (i) Upon the written request of the Company, ▇▇▇▇▇▇ agrees that, in the event of an Acquisition (as defined below) in which the sole consideration is cash, either (a) Holder shall exercise its conversion or purchase right under this Warrant and such exercise will be deemed effective immediately prior to the consummation of such Acquisition or (b) if Holder elects not to exercise the Warrant, this Warrant will expire upon the closing of such Acquisition. The Company shall provide the Holder with written notice of its request relating to the foregoing (together with such reasonable information as the Holder may request in connection with such contemplated Acquisition giving rise to such notice), which is to be delivered to Holder not less than ten (10) days prior to the closing of the proposed Acquisition. (ii) Upon written request of the Company, ▇▇▇▇▇▇ agrees that, in the event of a stock for stock Acquisition of the Company by a publicly traded acquirer if, on the record date for the Acquisition, the fair market value of the Shares (or other securities issuable upon exercise of this Warrant) is equal to or greater than three (3x) times the Warrant Price, Company may require the Warrant to be deemed automatically exercised and the Holder shall participate in the Acquisition as a holder of the Shares (or other securities issuable upon exercise of the Warrant) on the same terms as other holders of the same class of securities of the Company. (iii) Upon the closing of any Acquisition, without limiting or prejudicing Holder’s right to convert this Warrant under Section 1.3 or exercise its “put” rights under Section 1.8 (Acquisition other than those particularly described in each case with respect to the Warrant Stock that may then be converted or put) the surviving entity shall, as a condition to the Acquisition, either subsections (i) or (ii) above, the successor entity shall assume the obligations under this of the Warrant, then this and the Warrant shall be convertible into exercisable for the same securities securities, cash, and property as would be payable for the shares of Warrant Stock Shares issuable upon conversion exercise of the unconverted unexercised portion of this Warrant as if such shares of Warrant Stock Shares were outstanding on the record date for the Acquisition (and the Exchange subsequent closing. The Warrant Price and/or number of shares of Warrant Stock Shares shall be adjusted accordingly); . (iv) For the purpose of this Warrant, “Acquisition” means any sale, license, or (ii) other disposition of all or substantially all of the assets of the Company, or any reorganization, consolidation, or merger of the Company or other surviving entity in such Acquisition shall, upon initial closing of such Acquisition purchase this Warrant at its “Fair Value” (where the “Purchase Price”). For purposes hereof, “Fair Value” means that value determined by the parties using a Black-Scholes Option-Pricing Model (the “Black-Scholes Calculation”) with the following assumptions: (A) a risk-free interest rate equal to the risk-free interest rate at the time of the closing of the Acquisition (or as close thereto as practicable), (B) a contractual life of the Warrant equal to the remaining term of this Warrant as of the date of the announcement of the Acquisition, (C) an annual dividend yield equal to dividends payable or declared on the underlying shares of Warrant Stock (including securities into which the shares of Warrant Stock may be convertible) during the term of this Warrant (calculated on an annual basis), and (D) a volatility factor of the expected market price holders of the Company’s Shares comprised of: (1) if securities before the Company is publicly traded on a national securities exchange, its volatility over the one year period ending on the day prior to the announcement transaction beneficially own less than 50% of the Acquisition, (2) if the Shares are traded over-the-counter, its volatility over the one year period ending on the day prior to the announcement outstanding voting securities of the Acquisitionsurviving entity after the transaction, or (3) if the Company is a non-other than in connection with an initial public company, the volatility, over the one year period prior to the Acquisition, of an average of publicly-traded companies in the same or similar industry to the Company with such companies having similar revenues. The Purchase Price determined in accordance with the above shall be paid upon the initial closing of the Acquisition and shall not be subject to any post-Acquisition closing contingencies or adjustments; provided, however, the parties may take such post-Acquisition closing contingencies or adjustments into account in determining the Purchase Price, and if the parties take any post-Acquisition closing contingencies or adjustments into account, then upon the partial or complete removal of those post-Acquisition closing contingencies or adjustments, a new Black-Scholes Calculation would be made using all of the same inputs except for the value of the Company’s Shares (as determined under subclause (D)), and any increase in Fair Value (and, correspondingly, Purchase Price), including, without limitation, as a result of any earn-out or escrowed consideration, would be paid in full to Holder immediately after those post-Acquisition closing contingencies or adjustments can be determined or achievedoffering.

Treatment of Warrant Upon Acquisition of Company. Upon Without prejudice to PFG’s right to convert this Warrant at any time at its option, upon the closing of any Acquisition, without limiting or prejudicing Holder’s right to convert this Warrant under Section 1.3 or exercise its “put” rights under Section 1.8 (in each case with respect to the Warrant Stock that may then be converted or put) the surviving entity shall, as a condition to the Acquisition, either (i) assume the obligations under this Warrant, then and this Warrant shall then be convertible into the same securities as would be payable for the shares of Warrant Stock issuable upon conversion of the unconverted portion of this Warrant as if such shares of Warrant Stock were outstanding on the record date for the Acquisition (and the Exchange Price and/or number of shares of Warrant Stock shall be adjusted accordingly); or (ii) the Company or other surviving entity in such Acquisition shall, upon initial closing of such Acquisition purchase this Warrant at its “Fair Value” (the “Purchase Price”). For purposes hereof, “Fair Value” means that value determined by the parties using a Black-Scholes Option-Pricing Model (the “Black-Scholes Calculation”) with the following assumptions: (A) a risk-free interest rate equal to the risk-free interest rate at the time of the closing of the Acquisition (or as close thereto as practicable), (B) a contractual life of the Warrant equal to the remaining term of this Warrant as of the date of the announcement of the Acquisition, (C) an annual dividend yield equal to dividends payable or declared on the underlying shares of Warrant Stock (including securities into which the shares of Warrant Stock may be convertible) during the term of this Warrant (calculated on an annual basis), and (D) a volatility factor of the expected market price of the Company’s Shares comprised of: (1) if the Company is publicly traded on a national securities exchange, its volatility over the one year period ending on the day prior to the announcement of the Acquisition, (2) if the Shares are traded over-the-counter, its volatility over the one year period ending on the day prior to the announcement of the Acquisition, or (3) if the Company is a non-public company, the volatility, over the one year period prior to the Acquisition, of an average of publicly-traded companies in the same or similar industry to the Company with such companies having similar revenues. The Purchase Price determined in accordance with the above shall be paid upon the initial closing of the Acquisition and shall not be subject to any post-Acquisition closing contingencies or adjustments; provided, however, the parties may take such post-Acquisition closing contingencies or adjustments into account in determining the Purchase Price, and if the parties take any post-Acquisition closing contingencies or adjustments into account, then upon the partial or complete removal of those post-Acquisition closing contingencies or adjustments, a new Black-Scholes Calculation would be made using all of the same inputs except for the value of the Company’s Shares (as determined under subclause (D)), and any increase in Fair Value (and, correspondingly, Purchase Price), including, without limitation, as a result of any earn-out or escrowed consideration, would be paid in full to Holder immediately after those post-Acquisition closing contingencies or adjustments can be determined or achieved.

Treatment of Warrant Upon Acquisition of Company. Upon Subject to HOLDER's exercise of rights under Section 1.8, upon the closing of any Acquisition, without limiting or prejudicing Holder’s right to convert this Warrant under Section 1.3 or exercise its “put” rights under Section 1.8 (in each case with respect to the Warrant Stock that may then be converted or put) the surviving entity shall, as a condition to the Acquisition, either (i) assume the obligations under this Warrant, then this Warrant shall be convertible into the same securities as would be payable for the shares of Warrant Stock issuable upon conversion of the unconverted portion of this Warrant as if such shares of Warrant Stock were outstanding on the record date for the Acquisition (and the Exchange Price and/or number of shares of Warrant Stock shall be adjusted accordingly); or (ii) the Company or other surviving entity in such Acquisition shall, upon initial closing of such Acquisition purchase this Warrant at its “"Fair Value” " (the “"Purchase Price”"). For purposes hereof, “"Fair Value” " means that value determined by the parties using a Black-Scholes Option-Pricing Model (the “"Black-Scholes Calculation”") with the following assumptions: (A) a risk-free interest rate equal to the risk-free interest rate at the time of the closing of the Acquisition (or as close thereto as practicable), (B) a contractual life of the Warrant equal to the remaining term of this Warrant as of the date of the announcement of the Acquisition, (C) an annual dividend yield equal to dividends payable or declared on the underlying shares of Warrant Stock (including securities into which the shares of Warrant Stock may be convertible) during the term of this Warrant (calculated on an annual basis), and (D) a volatility factor of the expected market price of the Company’s 's Shares comprised of: (1) if the Company is publicly traded on a national securities exchange, its volatility over the one year period ending on the day prior to the announcement of the Acquisition, (2) if the Shares are traded over-the-counter, its volatility over the one year period ending on the day prior to the announcement of the Acquisition, or (3) if the Company is a non-public company, the volatility, over the one year period prior to the Acquisition, of an average of publicly-traded companies in the same or similar industry to the Company with such companies having similar revenues. The Purchase Price determined in accordance with the above shall be paid upon the initial closing of the Acquisition and shall not be subject to any post-Acquisition closing contingencies or adjustments; provided, however, the parties may take such post-Acquisition closing contingencies or adjustments into account in determining the Purchase Price, and if the parties take any post-Acquisition closing contingencies or adjustments into account, then upon the partial or complete removal of those post-Acquisition closing contingencies or adjustments, a new Black-Scholes Calculation would be made using all of the same inputs except for the value of the Company’s 's Shares (as determined under subclause (D)), and any increase in Fair Value (and, correspondingly, Purchase Price), including, without limitation, as a result of any earn-out or escrowed consideration, would be paid in full to Holder immediately after those post-Acquisition closing contingencies or adjustments can be determined or achieved.

Treatment of Warrant Upon Acquisition of Company. Upon i. Notwithstanding anything in Section 3(c) to the contrary, in the event of any Fundamental Transaction in which the shares underlying the Warrant Shares, including the outstanding Common Stock and/or such other shares or securities issued pursuant to the adjustment provision set forth in Section 3(c,) is converted into or exchanged for only the right to receive cash, which rights may include any future payments, earnouts or contingent value payment that is payable in cash or otherwise has a predetermined cash value (an “Acquisition” and such amount of cash, the “Cash Consideration”), (1) the Company shall provide the Holder at least ten days’ advance written notice of the anticipated closing of any such Acquisition, without limiting or prejudicing Holder’s right (2) subject to convert this Warrant under Section 1.3 or any other limitations on exercise its “put” rights under Section 1.8 (in each case with respect to the Warrant Stock that may then be converted or put) the surviving entity shall, as a condition to the Acquisition, either (i) assume the obligations under this Warrant, then this Warrant the Holder shall be convertible into have the same securities as would be payable for the shares of Warrant Stock issuable upon conversion of the unconverted portion of this Warrant as if such shares of Warrant Stock were outstanding on the record date for the Acquisition (and the Exchange Price and/or number of shares of Warrant Stock shall be adjusted accordingly); or (ii) the Company or other surviving entity in such Acquisition shall, upon initial closing of such Acquisition purchase this Warrant at its “Fair Value” (the “Purchase Price”). For purposes hereof, “Fair Value” means that value determined by the parties using a Black-Scholes Option-Pricing Model (the “Black-Scholes Calculation”) with the following assumptions: (A) a risk-free interest rate equal right to the risk-free interest rate at the time of the closing of the Acquisition (or as close thereto as practicable), (B) a contractual life of exercise the Warrant equal to the remaining term of this Warrant as of the date of the announcement of the Acquisition, (C) an annual dividend yield equal to dividends payable or declared on the underlying shares of Warrant Stock (including securities into which the shares of Warrant Stock may be convertible) during the term of this Warrant (calculated on an annual basis), and (D) a volatility factor of the expected market price of the Company’s Shares comprised of: (1) if the Company is publicly traded on a national securities exchange, its volatility over the one year period ending on until the day prior to the announcement closing of the Acquisition, (2) if the Shares are traded over-the-counter, its volatility over the one year period ending on the day prior to the announcement of the Acquisition, or and (3) if the Company is a non-public companyHolder shall not have elected to exercise this Warrant in full, the volatilityany outstanding Warrant Shares shall be treated in accordance with Section 3(d)(ii) below. ii. If, over the one year period immediately prior to the Acquisition, the Cash Consideration payable upon conversion or exchange of one Warrant Share would be greater than the applicable Exercise Price in effect on such date, then effective upon the consummation of the Acquisition, this Warrant shall automatically be deemed on and as of such date to be converted into only the right to receive an average amount in cash equal to (x) the excess of publicly-traded companies the Cash Consideration payable upon conversion or exchange of one Warrant Share over the Exercise Price in effect on such date, multiplied by (y) the same or similar industry number of Warrant Shares for which this Warrant shall not have previously been exercised. If, immediately prior to the Company with Acquisition, the Cash Consideration payable upon conversion or exchange of one Warrant Share would be less than the applicable Exercise Price in effect on such companies having similar revenuesdate, then effective upon the consummation of the Acquisition, this Warrant shall automatically be deemed on and as of such date to be cancelled for no consideration. The Purchase Price To the extent that the Cash Consideration includes any future or contingent payment, the fair market value of such future or contingent payment for the purpose of the determination of the Cash Consideration amount under this Section 3(d)(ii) shall be determined in accordance with the above shall be paid upon the initial closing of the Acquisition and shall not be subject to any post-Acquisition closing contingencies or adjustments; provided, however, the parties may take such post-Acquisition closing contingencies or adjustments into account in determining the Purchase Price, and if the parties take any post-Acquisition closing contingencies or adjustments into account, then upon the partial or complete removal of those post-Acquisition closing contingencies or adjustments, a new Black-Scholes Calculation would be made using all of the same inputs except for the value of good faith by the Company’s Shares (as determined under subclause (D)), and any increase in Fair Value (and, correspondingly, Purchase Price), including, without limitation, as a result Board of any earn-out or escrowed consideration, would be paid in full to Holder immediately after those post-Acquisition closing contingencies or adjustments can be determined or achievedDirectors.

Treatment of Warrant Upon Acquisition of Company. (i) Upon the written request of the Company, H▇▇▇▇▇ agrees that, in the event of an Acquisition (as defined below) in which the sole consideration is cash, either (a) Holder shall exercise its conversion or purchase right under this Warrant and such exercise will be deemed effective immediately prior to the consummation of such Acquisition or (b) if Holder elects not to exercise the Warrant, this Warrant will expire upon the consummation of such Acquisition. The Company shall provide the Holder with written notice of its request relating to the foregoing (together with such reasonable information as the Holder may request in connection with such contemplated Acquisition giving rise to such notice), which is to be delivered to Holder not less than ten (10) days prior to the closing of the proposed Acquisition. (ii) Upon written request of the Company, H▇▇▇▇▇ agrees that, in the event of a stock for stock Acquisition of the Company by a publicly traded acquirer if, on the record date for the Acquisition, the fair market value of the Shares (or other securities issuable upon exercise of this Warrant) is equal to or greater than three (3) times the Warrant Price, Company may require the Warrant to be deemed automatically exercised and the Holder shall participate in the Acquisition as a holder of the Shares (or other securities issuable upon exercise of the Warrant) on the same terms as other holders of the same class of securities of the Company. (iii) Upon the closing of any Acquisition, without limiting or prejudicing Holder’s right to convert this Warrant under Section 1.3 or exercise its “put” rights under Section 1.8 (Acquisition other than those particularly described in each case with respect to the Warrant Stock that may then be converted or put) the surviving entity shall, as a condition to the Acquisition, either subsections (i) or (ii) above, the successor entity shall assume the obligations under this of the Warrant, then this and the Warrant shall be convertible into exercisable for the same securities securities, cash, and property as would be payable for the shares of Warrant Stock Shares issuable upon conversion exercise of the unconverted unexercised portion of this Warrant as if such shares of Warrant Stock Shares were outstanding on the record date for the Acquisition (and the Exchange subsequent closing. The Warrant Price and/or number of shares of Warrant Stock Shares shall be adjusted accordingly); . (iv) For the purpose of this Warrant, “Acquisition” means any sale, license, or (ii) other disposition of all or substantially all of the assets of the Company, or any reorganization, consolidation, or merger of the Company or other surviving entity in such Acquisition shall, upon initial closing of such Acquisition purchase this Warrant at its “Fair Value” (where the “Purchase Price”). For purposes hereof, “Fair Value” means that value determined by the parties using a Black-Scholes Option-Pricing Model (the “Black-Scholes Calculation”) with the following assumptions: (A) a risk-free interest rate equal to the risk-free interest rate at the time of the closing of the Acquisition (or as close thereto as practicable), (B) a contractual life of the Warrant equal to the remaining term of this Warrant as of the date of the announcement of the Acquisition, (C) an annual dividend yield equal to dividends payable or declared on the underlying shares of Warrant Stock (including securities into which the shares of Warrant Stock may be convertible) during the term of this Warrant (calculated on an annual basis), and (D) a volatility factor of the expected market price holders of the Company’s Shares comprised of: (1) if securities before the Company is publicly traded on a national securities exchange, its volatility over the one year period ending on the day prior to the announcement transaction beneficially own less than 50% of the Acquisition, (2) if the Shares are traded over-the-counter, its volatility over the one year period ending on the day prior to the announcement outstanding voting securities of the Acquisitionsurviving entity after the transaction, other than in connection with an initial public offering or any transaction or series of transactions principally for bona fide equity financing purposes whereby the company issues (3or agrees to issue) if the Company is a non-public company, the volatility, over the one year period prior to the Acquisition, equity securities in exchange for cash or cancellation of an average of publicly-traded companies in the same or similar industry to the Company with such companies having similar revenues. The Purchase Price determined in accordance with the above shall be paid upon the initial closing of the Acquisition and shall not be subject to any post-Acquisition closing contingencies or adjustments; provided, however, the parties may take such post-Acquisition closing contingencies or adjustments into account in determining the Purchase Price, and if the parties take any post-Acquisition closing contingencies or adjustments into account, then upon the partial or complete removal of those post-Acquisition closing contingencies or adjustments, a new Black-Scholes Calculation would be made using all of the same inputs except for the value of the Company’s Shares (as determined under subclause (D)), and any increase in Fair Value (and, correspondingly, Purchase Price), including, without limitation, as a result of any earn-out or escrowed consideration, would be paid in full to Holder immediately after those post-Acquisition closing contingencies or adjustments can be determined or achievedindebtedness.

Treatment of Warrant Upon Acquisition of Company. (i) Upon the written request of the Company, ▇▇▇▇▇▇ agrees that, in the event of an Acquisition (as defined below) in which the sole consideration is cash, either (a) Holder shall exercise its conversion or purchase right under this Warrant and such exercise will be deemed effective immediately prior to the consummation of such Acquisition or (b) if Holder elects not to exercise the Warrant, this Warrant will expire upon the consummation of such Acquisition. The Company shall provide the Holder with written notice of its request relating to the foregoing (together with such reasonable information as the Holder may request in connection with such contemplated Acquisition giving rise to such notice), which is to be delivered to Holder not less than ten (10) days prior to the closing of the proposed Acquisition. (ii) Upon written request of the Company, ▇▇▇▇▇▇ agrees that, in the event of a stock for stock Acquisition of the Company by a publicly traded acquirer if, on the record date for the Acquisition, the fair market value of the Shares (or other securities issuable upon exercise of this Warrant) is equal to or greater than three (3) times the Warrant Price, Company may require the Warrant to be deemed automatically exercised and the Holder shall participate in the Acquisition as a holder of the Shares (or other securities issuable upon exercise of the Warrant) on the same terms as other holders of the same class of securities of the Company. (iii) Upon the closing of any Acquisition, without limiting or prejudicing Holder’s right to convert this Warrant under Section 1.3 or exercise its “put” rights under Section 1.8 (Acquisition other than those particularly described in each case with respect to the Warrant Stock that may then be converted or put) the surviving entity shall, as a condition to the Acquisition, either subsections (i) or (ii) above, the successor entity shall assume the obligations under this of the Warrant, then this and the Warrant shall be convertible into exercisable for the same securities securities, cash, and property as would be payable for the shares of Warrant Stock Shares issuable upon conversion exercise of the unconverted unexercised portion of this Warrant as if such shares of Warrant Stock Shares were outstanding on the record date for the Acquisition (and the Exchange subsequent closing. The Warrant Price and/or number of shares of Warrant Stock Shares shall be adjusted accordingly); . (iv) For the purpose of this Warrant, “Acquisition” means any sale, license, or (ii) other disposition of all or substantially all of the assets of the Company, or any reorganization, consolidation, or merger of the Company or other surviving entity in such Acquisition shall, upon initial closing of such Acquisition purchase this Warrant at its “Fair Value” (where the “Purchase Price”). For purposes hereof, “Fair Value” means that value determined by the parties using a Black-Scholes Option-Pricing Model (the “Black-Scholes Calculation”) with the following assumptions: (A) a risk-free interest rate equal to the risk-free interest rate at the time of the closing of the Acquisition (or as close thereto as practicable), (B) a contractual life of the Warrant equal to the remaining term of this Warrant as of the date of the announcement of the Acquisition, (C) an annual dividend yield equal to dividends payable or declared on the underlying shares of Warrant Stock (including securities into which the shares of Warrant Stock may be convertible) during the term of this Warrant (calculated on an annual basis), and (D) a volatility factor of the expected market price holders of the Company’s Shares comprised of: (1) if securities before the Company is publicly traded on a national securities exchange, its volatility over the one year period ending on the day prior to the announcement transaction beneficially own less than 50% of the Acquisition, (2) if the Shares are traded over-the-counter, its volatility over the one year period ending on the day prior to the announcement outstanding voting securities of the Acquisitionsurviving entity after the transaction, other than in connection with an initial public offering or any transaction or series of transactions principally for bona fide equity financing purposes whereby the company issues (3or agrees to issue) if the Company is a non-public company, the volatility, over the one year period prior to the Acquisition, equity securities in exchange for cash or cancellation of an average of publicly-traded companies in the same or similar industry to the Company with such companies having similar revenues. The Purchase Price determined in accordance with the above shall be paid upon the initial closing of the Acquisition and shall not be subject to any post-Acquisition closing contingencies or adjustments; provided, however, the parties may take such post-Acquisition closing contingencies or adjustments into account in determining the Purchase Price, and if the parties take any post-Acquisition closing contingencies or adjustments into account, then upon the partial or complete removal of those post-Acquisition closing contingencies or adjustments, a new Black-Scholes Calculation would be made using all of the same inputs except for the value of the Company’s Shares (as determined under subclause (D)), and any increase in Fair Value (and, correspondingly, Purchase Price), including, without limitation, as a result of any earn-out or escrowed consideration, would be paid in full to Holder immediately after those post-Acquisition closing contingencies or adjustments can be determined or achievedindebtedness.