Common use of Consideration for Stock Clause in Contracts

Consideration for Stock. In case any shares of Common Stock or any ------------------------- Common Stock Equivalents shall be issued or sold: (1) in connection with any merger or consolidation in which the Maker is the surviving corporation (other than any consolidation or merger in which the previously outstanding shares of Common Stock of the Maker shall be changed to or exchanged for the stock or other securities of another corporation), the amount of consideration therefore shall be, deemed to be the fair value, as determined reasonably and in good faith by the Board of Directors of the Maker, of such portion of the assets and business of the nonsurviving corporation as such Board may determine to be attributable to such shares of Common Stock, Convertible Securities, rights or warrants or options, as the case may be; or (2) in the event of any consolidation or merger of the Maker in which the Maker is not the surviving corporation or in which the previously outstanding shares of Common Stock of the Maker shall be changed into or exchanged for the stock or other securities of another corporation, or in the event of any sale of all or substantially all of the assets of the Maker for stock or other securities of any corporation, the Maker shall be deemed to have issued a number of shares of its Common Stock for stock or securities or other property of the other corporation computed on the basis of the actual exchange ratio on which the transaction was predicated, and for a consideration equal to the fair market value on the date of such transaction of all such stock or securities or other property of the other corporation. If any such calculation results in adjustment of the applicable Fixed Conversion Price, or the number of shares of Common Stock issuable upon conversion of the Notes, the determination of the applicable Fixed Conversion Price or the number of shares of Common Stock issuable upon conversion of the Notes immediately prior to such merger, consolidation or sale, shall be made after giving effect to such adjustment of the number of shares of Common Stock issuable upon conversion of the Notes. (b)

Consideration for Stock. In case any shares of Common Stock or any ------------------------- Common Stock Equivalents (defined as “rights or warrants or options to purchase any Common Stock or Convertible Securities (defined as “securities convertible into or exchangeable for, directly or indirectly, Common Stock”) shall be issued or sold: (1) in connection with any merger or consolidation in which the Maker is the surviving corporation (other than any consolidation or merger in which the previously outstanding shares of Common Stock of the Maker shall be changed to or exchanged for the stock or other securities of another corporation), the amount of consideration therefore therefor shall be, deemed to be the fair value, as determined reasonably and in good faith by the Board of Directors of the Maker, of such portion of the assets and business of the nonsurviving non-surviving corporation as such Board may determine to be attributable to such shares of Common Stock, Convertible Securities, rights or warrants or options, as the case may be; or (2) in the event of any consolidation or merger of the Maker in which the Maker is not the surviving corporation or in which the previously outstanding shares of Common Stock of the Maker shall be changed into or exchanged for the stock or other securities of another corporation, or in the event of any sale of all or substantially all of the assets of the Maker for stock or other securities of any corporation, the Maker shall be deemed to have issued a number of shares of its Common Stock for stock or securities or other property of the other corporation computed on the basis of the actual exchange ratio on which the transaction was predicated, and for a consideration equal to the fair market value on the date of such transaction of all such stock or securities or other property of the other corporation. If any such calculation results in adjustment of the applicable Fixed Conversion Price, or the number of shares of Common Stock issuable upon conversion of the NotesNote, the determination of the applicable Fixed Conversion Price or the number of shares of Common Stock issuable upon conversion of the Notes Note immediately prior to such merger, consolidation or sale, shall be made after giving effect to such adjustment of the number of shares of Common Stock issuable upon conversion of the NotesNote. (bIn the event Common Stock is issued with other shares or securities or other assets of Maker for consideration which covers both, the consideration computed as provided in this Section shall be allocated among such securities and assets as determined in good faith by the Board of Directors of Maker; or for services, other than as permitted pursuant to Section 4(d)(x), the amount of consideration therefor shall be deemed to be the par value of the Common Stock.

Consideration for Stock. In case any shares of Common Stock or any ------------------------- Common Stock Equivalents (defined as “rights” or warrants or options to purchase any Common Stock or Convertible Securities (defined as “securities convertible into or exchangeable for, directly or indirectly, Common Stock”) shall be issued or sold: (1) in connection with any merger or consolidation in which the Maker Borrower is the surviving corporation (other than any consolidation or merger in which the previously outstanding shares of Common Stock of the Maker Borrower shall be changed to or exchanged for the stock or other securities of another corporation), the amount of consideration therefore therefor shall be, deemed to be the fair value, as determined reasonably and in good faith by the Board of Directors of the MakerBorrower, of such portion of the assets and business of the nonsurviving non-surviving corporation as such Board may determine to be attributable to such shares of Common Stock, Convertible Securities, rights or warrants or options, as the case may be; or (2) in the event of any consolidation or merger of the Maker Borrower in which the Maker Borrower is not the surviving corporation or in which the previously outstanding shares of Common Stock of the Maker Borrower shall be changed into or exchanged for the stock or other securities of another corporation, or in the event of any sale of all or substantially all of the assets of the Maker Borrower for stock or other securities of any corporation, then upon the Maker closing of such transaction, this Note will automatically be redeemable for a payment equal to 150% of the outstanding principal amount of this Note (including accrued interest) (the “Change of Control Preference Amount”); or Borrower shall be deemed to have issued a number of shares of its Common Stock for stock or securities or other property of the other corporation computed on the basis of the actual exchange ratio on which the transaction was predicated, and for a consideration equal to the fair market value on the date of such transaction of all such stock or securities or other property of the other corporation. If any such calculation results in adjustment of the applicable Fixed Conversion Price, or the number of shares of Common Stock issuable upon conversion of the NotesNote, the determination of the applicable Fixed Conversion Price or the number of shares of Common Stock issuable upon conversion of the Notes Note immediately prior to such merger, consolidation or sale, shall be made after giving effect to such adjustment of the number of shares of Common Stock issuable upon conversion of the NotesNote. (bIn the event Common Stock is issued with other shares or securities or other assets of Borrower for consideration which covers both, the consideration computed as provided in this Section shall be allocated among such securities and assets as determined in good faith by the Board of Directors of Borrower; or for services, other than as permitted pursuant to Section 4(d)(x), the amount of consideration therefor shall be deemed to be the par value of the Common Stock.

Consideration for Stock. In case any shares of Common Stock or Convertible Securities other than this Note, or any ------------------------- rights or warrants or options to purchase any such Common Stock Equivalents or convertible securities, shall be issued or sold: (1) in connection with any merger or consolidation in which the Maker Company is the surviving corporation (other than any consolidation or merger in which the previously outstanding shares of Common Stock of the Maker Company shall be changed to or exchanged for the stock or other securities of another corporation), the amount of consideration therefore shall be, deemed to be the fair value, as determined reasonably and in good faith by the Board of Directors of the MakerCompany, of such portion of the assets and business of the nonsurviving corporation as such Board may determine to be attributable to such shares of Common Stock, Convertible Securitiesconvertible securities, rights or warrants or options, as the case may be; or (2) in the event of any consolidation or merger of the Maker Company in which the Maker Company is not the surviving corporation or in which the previously outstanding shares of Common Stock of the Maker Company shall be changed into or exchanged for the stock or other securities of another corporation, or in the event of any sale of all or substantially all of the assets of the Maker Company for stock or other securities of any corporation, the Maker Company shall be deemed to have issued a number of shares of its Common Stock for stock or securities or other property of the other corporation computed on the basis of the actual exchange ratio on which the transaction was predicated, and for a consideration equal to the fair market value on the date of such transaction of all such stock or securities or other property of the other corporation. If any such calculation results in adjustment of the applicable Fixed Conversion Price, or the number of shares of Common Stock issuable upon conversion of the Notesthis Note, the determination of the applicable Fixed Conversion Price or the number of shares of Common Stock issuable upon conversion of the Notes this Note immediately prior to such merger, consolidation or sale, shall be made after giving effect to such adjustment of the number of shares of Common Stock issuable upon conversion of this Note. In the Notesevent any consideration received by the Company for any securities consists of property other than cash, the fair market value thereof at the time of issuance or as otherwise applicable shall be as determined in good faith by the Board of Directors of the Company. (b)In the event Common Stock is issued with other shares or securities or other assets of the Company for consideration which covers both, the consideration computed as provided in this Section shall be allocated among such securities and assets as determined in good faith by the Board of Directors of the Company.

Consideration for Stock. In case any shares of Common Stock ------------------------- or any ------------------------- Common Stock Equivalents shall be issued or sold: (1) in connection with any merger or consolidation in which the Maker is the surviving corporation (other than any consolidation or merger in which the previously outstanding shares of Common Stock of the Maker shall be changed to or exchanged for the stock or other securities of another corporation), the amount of consideration therefore shall be, deemed to be the fair value, as determined reasonably and in good faith by the Board of Directors of the Maker, of such portion of the assets and business of the nonsurviving corporation as such Board may determine to be attributable to such shares of Common Stock, Convertible Securities, rights or warrants or options, as the case may be; or (2) in the event of any consolidation or merger of the Maker in which the Maker is not the surviving corporation or in which the previously outstanding shares of Common Stock of the Maker shall be changed into or exchanged for the stock or other securities of another corporation, or in the event of any sale of all or substantially all of the assets of the Maker for stock or other securities of any corporation, the Maker shall be deemed to have issued a number of shares of its Common Stock for stock or securities or other property of the other corporation computed on the basis of the actual exchange ratio on which the transaction was predicated, and for a consideration equal to the fair market value on the date of such transaction of all such stock or securities or other property of the other corporation. If any such calculation results in adjustment of the applicable Fixed Conversion Price, or the number of shares of Common Stock issuable upon conversion of the Notes, the determination of the applicable Fixed Conversion Price or the number of shares of Common Stock issuable upon conversion of the Notes immediately prior to such merger, consolidation or sale, shall be made after giving effect to such adjustment of the number of shares of Common Stock issuable upon conversion of the Notes. (b)

Consideration for Stock. In case any shares of Common Stock or any ------------------------- Common Stock Equivalents shall be issued or sold: (1) in connection with any merger or consolidation in which the Maker Company is the surviving corporation (other than any consolidation or merger in which the previously outstanding shares of Common Stock of the Maker Company shall be changed to or exchanged for the stock or other securities of another corporation), the amount of consideration therefore shall be, deemed to be the fair value, as determined reasonably and in good faith by the Board of Directors of the MakerCompany, of such portion of the assets and business of the nonsurviving non surviving corporation as such Board may determine to be attributable to such shares of Common Stock, Convertible Securitiessecurities convertible into shares of Common Stock, rights or warrants or options, as the case may be; or (2) in the event of any consolidation or merger of the Maker Company in which the Maker Company is not the surviving corporation or in which the previously outstanding shares of Common Stock of the Maker Company shall be changed into or exchanged for the stock or other securities of another corporation, or in the event of any sale of all or substantially all of the assets of the Maker Company for stock or other securities of any corporation, the Maker Company shall be deemed to have issued a number of shares of its Common Stock for stock or securities or other property of the other corporation computed on the basis of the actual exchange ratio on which the transaction was predicated, and for a consideration equal to the fair market value on the date of such transaction of all such stock or securities or other property of the other corporation. If any such calculation results in adjustment of the applicable Fixed Conversion Price, or the number of shares of Common Stock issuable upon conversion of the NotesNote, the determination of the applicable Fixed Conversion Price or the number of shares of Common Stock issuable upon conversion of the Notes Note immediately prior to such merger, consolidation or sale, shall be made after giving effect to such adjustment of the number of shares of Common Stock issuable upon conversion of the NotesNote. (b)In the event Common Stock is issued with other shares or securities or other assets of the Company for consideration which covers both, the consideration computed as provided in this Section shall be allocated among such securities and assets as determined in good faith by the Board of Directors of the Company; or for services, other than as permitted pursuant to this Section, the amount of consideration therefor shall be deemed to be the par value of the Common Stock.

Consideration for Stock. In case any shares of Common Stock or any ------------------------- Common Stock Equivalents shall be issued or sold: (1) in connection with any merger or consolidation in which the Maker Holdings is the surviving corporation (other than any consolidation or merger in which the previously outstanding shares of Common Stock of the Maker Holdings shall be changed to or exchanged for the stock or other securities of another corporation), the amount of consideration therefore therefor shall be, deemed to be the fair value, as determined reasonably and in good faith by the Board of Directors of the MakerHoldings, of such portion of the assets and business of the nonsurviving corporation as such Board may determine to be attributable to such shares of Common Stock, Convertible Securities, rights or warrants or options, as the case may be; or (2) in the event of any consolidation or merger of the Maker Holdings in which the Maker Holdings is not the surviving corporation or in which the previously outstanding shares of Common Stock of the Maker Holdings shall be changed into or exchanged for the stock or other securities of another corporation, or in the event of any sale of all or substantially all of the assets of the Maker Holdings for stock or other securities of any corporation, the Maker Holdings shall be deemed to have issued a number of shares of its Common Stock for stock or securities or other property of the other corporation computed on the basis of the actual exchange ratio on which the transaction was predicated, and for a consideration equal to the fair market value on the date of such transaction of all such stock or securities or other property of the other corporation. If any such calculation results in adjustment of the applicable Fixed Conversion Price, or the number of shares of Common Stock issuable upon conversion of the NotesNote, the determination of the applicable Fixed Conversion Price or the number of shares of Common Stock issuable upon conversion of the Notes Note immediately prior to such merger, consolidation or sale, shall be made after giving effect to such adjustment of the number of shares of Common Stock issuable upon conversion of the NotesNote. (b)In the event Common Stock is issued with other shares or securities or other assets of Holdings for consideration which covers both, the consideration computed as provided in this Section shall be allocated among such securities and assets as determined in good faith by the Board of Directors of Holdings; or for services, other than as permitted pursuant to this Section, the amount of consideration therefor shall be deemed to be the par value of the Common Stock.

Consideration for Stock. In case any shares of Common Stock or any ------------------------- Common Stock Equivalents (defined as "rights" or warrants or options to purchase any Common Stock or Convertible Securities (defined as "securities convertible into or exchangeable for, directly or indirectly, Common Stock") shall be issued or sold: (1) in connection with any merger or consolidation in which the Maker Borrower is the surviving corporation (other than any consolidation or merger in which the previously outstanding shares of Common Stock of the Maker Borrower shall be changed to or exchanged for the stock or other securities of another corporation), the amount of consideration therefore therefor shall be, deemed to be the fair value, as determined reasonably and in good faith by the Board of Directors of the MakerBorrower, of such portion of the assets and business of the nonsurviving non-surviving corporation as such Board may determine to be attributable to such shares of Common Stock, Convertible Securities, rights or warrants or options, as the case may be; or (2) in the event of any consolidation or merger of the Maker Borrower in which the Maker Borrower is not the surviving corporation or in which the previously outstanding shares of Common Stock of the Maker Borrower shall be changed into or exchanged for the stock or other securities of another corporation, or in the event of any sale of all or substantially all of the assets of the Maker Borrower for stock or other securities of any corporation, then upon the Maker closing of such transaction, this Note will automatically be redeemable for a payment equal to 150% of the outstanding principal amount of this Note (including accrued interest) (the “Change of Control Preference Amount”); or Borrower shall be deemed to have issued a number of shares of its Common Stock for stock or securities or other property of the other corporation computed on the basis of the actual exchange ratio on which the transaction was predicated, and for a consideration equal to the fair market value on the date of such transaction of all such stock or securities or other property of the other corporation. If any such calculation results in adjustment of the applicable Fixed Conversion Price, or the number of shares of Common Stock issuable upon conversion of the NotesNote, the determination of the applicable Fixed Conversion Price or the number of shares of Common Stock issuable upon conversion of the Notes Note immediately prior to such merger, consolidation or sale, shall be made after giving effect to such adjustment of the number of shares of Common Stock issuable upon conversion of the NotesNote. (bIn the event Common Stock is issued with other shares or securities or other assets of Borrower for consideration which covers both, the consideration computed as provided in this Section shall be allocated among such securities and assets as determined in good faith by the Board of Directors of Borrower; or for services, other than as permitted pursuant to Section 4(d)(x), the amount of consideration therefor shall be deemed to be the par value of the Common Stock.

Consideration for Stock. In case any shares of Common Stock or any ------------------------- Common Stock Equivalents shall be issued or sold: (1) in connection with any merger or consolidation in which the Maker is the surviving corporation (other than any consolidation or merger in which the previously outstanding shares of Common Stock of the Maker shall be changed to or exchanged for the stock or other securities of another corporation), the amount of consideration therefore therefor shall be, deemed to be the fair value, as determined reasonably and in good faith by the Board of Directors of the Maker, of such portion of the assets and business of the nonsurviving corporation as such Board may determine to be attributable to such shares of Common Stock, Convertible Securities, rights or warrants or options, as the case may be; or (2) in the event of any consolidation or merger of the Maker in which the Maker is not the surviving corporation or in which the previously outstanding shares of Common Stock of the Maker shall be changed into or exchanged for the stock or other securities of another corporation, or in the event of any sale of all or substantially all of the assets of the Maker for stock or other securities of any corporation, the Maker shall be deemed to have issued a number of shares of its Common Stock for stock or securities or other property of the other corporation computed on the basis of the actual exchange ratio on which the transaction was predicated, and for a consideration equal to the fair market value on the date of such transaction of all such stock or securities or other property of the other corporation. If any such calculation results in adjustment of the applicable Fixed Conversion Price, or the number of shares of Common Stock issuable upon conversion of the Notes, the determination of the applicable Fixed Conversion Price or the number of shares of Common Stock issuable upon conversion of the Notes immediately prior to such merger, consolidation or sale, shall be made after giving effect to such adjustment of the number of shares of Common Stock issuable upon conversion of the Notes. (b)In the event Common Stock is issued with other shares or securities or other assets of the Maker for consideration which covers both, the consideration computed as provided in this Section 3.5(a)(viii) shall be allocated among such securities and assets as determined in good faith by the Board of Directors of the Maker; or other than as set forth above, for any non-cash consideration, the value of the consideration other than cash received by the Maker shall be deemed to be the fair market value of such consideration, as determined mutually in good faith by the Maker’s Board of Directors and the Holder or, if the Maker’s Board of Directors and the Holder fail to agree, at the Maker’s expense by an appraiser selected the Maker’s Board of Directors and reasonably acceptable to the Holder.