Common use of No Dilution or Impairment Clause in Contracts

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Agreement, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders of the Shares under this Agreement. Without limiting the generality of the foregoing, the Company (1) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock from time to time outstanding and (2) will not take any action which results in any adjustment of the number of Shares if the total number of Shares issuable after the action, would exceed the total number of Shares or shares of Common Stock, as the case may be, then authorized by the Company's certificate of incorporation and available for the purposes of issue.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the The Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, (i) by amendment of its certificate articles of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, or (ii) prior to the consummation of a Spin-Off and satisfaction of the Company’s obligations pursuant to Section 3.3(b), by consent to or approval of any amendment of DSW’s articles of incorporation or any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action by DSW, avoid or seek to avoid the observance or performance of any of the terms of this AgreementWarrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders Holder of the Shares under this AgreementWarrant against dilution or other impairment. Without limiting the generality of the foregoing, the Company (1a) will shall not permit the par value of any shares of stock receivable upon the exercise of this Warrant to exceed the amount payable therefor upon such exercise, (b) shall take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of stock, in the case of Common Stock Stock, or transfer shares of DSW Stock, in the case of DSW Stock, free from all liens, security interests, encumbrances (in each of the foregoing cases, other than those imposed by the Holder), taxes, preemptive rights and charges on the exercise of the Warrants from time to time outstanding outstanding, and (2c) will shall not take any action, or consent to the taking or approval of any action by DSW, which results in any adjustment of the number of Shares Purchase Price if the total number of Warrant Shares issuable after the action, action upon the exercise of all of the Warrants would exceed the total number of Shares or shares of Common Stock, as the case may be, Stock then authorized by the Company's certificate ’s articles of incorporation organization, or, in the case of shares of DSW Stock, the number of shares of DSW Stock owned by the Company and available for the purposes purpose of issueissue upon such exercise.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment of its certificate Certificate of incorporation Incorporation or through any consolidation, merger, reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Agreementthe Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders holder of the Shares under this AgreementWarrant against dilution. Without limiting the generality of the foregoing, the Company (1i) will not increase the par value of any shares of stock receivable on the exercise of the Warrant above the amount payable therefor on such exercise, (ii) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable non-assessable shares of Common Stock stock on the exercise of the Warrant from time to time outstanding outstanding, including by (A) preparing an Information Statement on Schedule 14C (the “Information Statement”) relating to the approval by written consent of the issuance of the Warrant Shares under this Warrant, and all other shares issuable by the Company pursuant to other instruments dated as of February 21, 2012, as required by Nasdaq Listing Rule 5635, (B) filing the Information Statement with the Securities and Exchange Commission (the “SEC”), (C) using its best efforts to cause the Information Statement to be cleared by the SEC as promptly as practicable and (2D) disseminating the Information Statement to the shareholders of the Company, and (iii) subject to Section 15, will not take transfer all or substantially all of its properties and assets to any action which results in other entity (corporate or otherwise), or consolidate with or merge into any adjustment of other entity or permit any such entity to consolidate with or merge with the number of Shares Company (if the total number Company is not the surviving entity), unless such other entity shall expressly assume in writing and will be bound by all the terms of Shares issuable after this Warrant and the action, would exceed the total number of Shares or shares of Common Stock, as the case may be, then authorized by the Company's certificate of incorporation and available for the purposes of issuePurchase Agreement.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares No Changes in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described thereinCapital Stock. The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this the Series 1 Certificate of Designations, the Amended and Restated Registration Rights Agreement, but this Agreement or the provisions of Series D Purchase Agreements that survive pursuant to Section 9.2 herein. The Company will at all times in good faith assist in the carrying out of all such terms terms, and in the taking of all such action action, as may be necessary or appropriate in order to protect the rights of the Holders holders of Shares (as such rights are set forth in the Shares under Series D Purchase Agreements, the Series 1 Certificate of Designations, the Amended and Restated Registration Rights Agreement and this Agreement) against dilution or other impairment. Without limiting the generality of the foregoing, the Company (1a) will not issue any shares or class or series of equity or equity-linked security, which is senior to, or pari passu with, the Series 1 Preferred as to dividend payments or amounts payable in the event of liquidation or winding up of the Company; except that the Company may issue up to $10 million of preferred stock which is pari passu with the Series 1 Preferred, (b) will not enter into any agreement or instrument which would restrict or otherwise materially adversely affect the ability of the Company to perform its obligations under the Series D Purchase Agreements, this Agreement, the Amended and Restated Registration Rights Agreement or the Series 1 Certificate of Designations, (c) will not amend its certificate of incorporation or by-laws in any manner which would impair or reduce the rights of the Preferred Stock, including, without limitation, an amendment which would alter or change the powers, privileges or preferences of the holders of the Series 1 Preferred (including, without limitation, changing the Series 1 Certificate of Designations after any Shares have been called for redemption), (d) except as otherwise provided in the Series 1 Certificate of Designations, as in effect at the Effective Time, will not redeem, repurchase or otherwise acquire any shares of capital stock of the Company or any other rights or options to subscribe for or purchase any capital stock of the Company or any other securities convertible into or exchangeable for capital stock of the Company, (e) will not permit the par value or the determined or stated value of any shares of Common Stock receivable upon the conversion of the Shares to exceed the amount payable therefor upon such conversion, (f) will take all such action as may be necessary or appropriate in order that the Company may at all times validly and legally issue duly authorized, fully paid and nonassessable shares of the Company Common Stock free from all taxes, Liens and charges with respect to the issue thereof, upon the conversion of the Shares from time to time outstanding and outstanding, (2g) will not take any action which results in any adjustment of the number current conversion price under the Series 1 Certificate of Shares Designations if the total number of Shares shares of the Common Stock (or other securities) issuable after the action, action upon the conversion of all of the then outstanding Shares would exceed the total number of Shares or shares of Common Stock, as the case may be, Stock (or other securities) then authorized by the Company's certificate of incorporation and available for the purposes purpose of issueissuance upon such conversion or exercise, (h) will not have any authorized Common Stock (and will not issue any Common Stock) other than its existing authorized Common Stock, $.01 par value per share, and (i) will not amend its certificate of incorporation to change any terms of its Common Stock.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are LVDGT will not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment of its certificate of incorporation organizational documents or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this AgreementOption, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders holder of the Shares under this AgreementOption against dilution or other impairment. Without limiting the generality of the foregoing, LVDGT (a) will not permit the Company par value of any Shares receivable upon the exercise of this Option to exceed the amount payable therefor upon such exercise, (1b) will take all such action as may be necessary or appropriate in order that the Company LVDGT may validly and legally issue fully paid and nonassessable shares non-assessable Shares on the exercise of Common Stock the Option from time to time outstanding and time, (2c) will not take any action which results in any adjustment of the number of Shares Option Price if the total number of Shares issuable after the action, action upon full exercise of the Option would exceed the total number of Shares or shares of Common Stock, as the case may be, then authorized by the CompanyLVDGT's certificate of incorporation and available for the purposes purpose of issueissue upon such exercise, and (d) will not issue any capital stock of any class which is preferred as to dividends or as to the distribution of assets upon voluntary or involuntary dissolution, liquidation or winding-up, unless the rights of the holders thereof shall be limited to a fixed sum or percentage of par value or a sum determined by reference to a formula based on a published index of interest rates, an interest rate publicly announced by a financial institution or a similar indicator of interest rates in respect of participation in dividends and to a fixed sum or percentage of par value in any such distribution of assets. In case any event shall occur as to which any of the provisions of this Option are not strictly applicable but the failure to make any adjustment would not fairly protect the purchase rights represented by this Option in accordance with the essential intent and principles contained herein, then, in each such case, LVDGT shall, at its sole cost and expense, appoint a firm of independent certified public accountants of recognized national standing (which may be the regular auditors of LVDGT), which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established herein, necessary to preserve, without dilution, the purchase rights represented by this Option. Upon receipt of such opinion, LVDGT will promptly mail a copy thereof to the holder of this Option and shall make the adjustments described therein.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment of its certificate Certificate of incorporation Incorporation or through any consolidation, merger, reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this AgreementWarrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders holder of the Shares under this AgreementWarrant hereunder. Without limiting the generality of the foregoing, the Company (1i) will not increase the par value of any shares of stock receivable on the exercise of the Warrant above the amount payable therefor on such exercise, (ii) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable non-assessable shares of stock on the exercise of the Warrant from time to time outstanding, (iii) will not issue any capital stock of any class which is preferred as to dividends or as to the distribution of assets upon voluntary or involuntary dissolution, liquidation or winding up, unless the rights of the holders thereof shall be limited to a fixed sum or percentage of par value in respect of participation in dividends and in any such distribution of assets and (iv) will not transfer all or substantially all of its properties and assets to any other entity (corporate or otherwise), or consolidate with or merge into any other entity or permit any such entity to consolidate with or merge into the Company (if the Company is not the surviving entity), unless such other entity shall expressly assume in writing and will be bound by all the terms of this Warrant and the Agreement. If any event occurs as to which the provisions of Sections 5, 6 or 7 hereof are strictly applicable and the application thereof would not, in the good faith judgment of the Board of Directors of the Company, fairly protect the purchase rights of the Warrants in accordance with the essential intent and principles of such provisions, then such Board shall make such adjustments in the application of such provisions, in accordance with such essential intent and principles, as shall be reasonably necessary, in the good faith opinion of such Board, to protect such purchase rights as aforesaid, but in no event shall any such adjustment have the effect of increasing the Exercise Price or decreasing the number of shares of Common Stock subject to purchase upon exercise of this Warrant. Nothing contained in this Warrant shall prohibit the Company from time to time outstanding and (2) will not take any action which results issuing or selling securities in any adjustment of the number of Shares if the total number of Shares issuable after the action, would exceed the total number of Shares or shares of Common Stock, as the case may be, then authorized by the Company's certificate of incorporation and available for the purposes of issuefuture.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment of its certificate Certificate of incorporation Incorporation, bylaws, the Stockholders Agreement, the Investors Rights Agreement or the terms of any class or series of its Capital Stock, or through any consolidationreorganization, merger, reorganizationrecapitalization, transfer of assets, dissolutionconsolidation, issue or sale of securities merger, share exchange, dissolution or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this AgreementWarrant, but including without limitation the adjustments required under Section 6 hereof, and will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders of the Shares under Holder against impairment pursuant to this AgreementWarrant. Without limiting the generality of the foregoingforegoing and notwithstanding any other provision of this Warrant to the contrary (including by way of implication), neither the Company nor any of its Subsidiaries (1as applicable) (a) will increase the par value of any shares of Common Stock receivable on the exercise of this Warrant above the amount payable therefor on such exercise, (b) will fail to take all such action as may be necessary or appropriate in order so that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock from time to time outstanding upon the exercise of this Warrant, and (2c) will not take waive, or permit the waiver of, any action which results right of the Holder as a holder of this Warrant under the Certificate of Incorporation, bylaws or the Stockholders Agreement (or the terms of any class or series of its Capital Stock) without the prior written consent of the Holder. The Holder acknowledges and agrees that nothing in this Section 7 shall prohibit the Company from engaging in any adjustment of the number of Shares if the total number of Shares issuable after the action, would exceed the total number of Shares Deemed Liquidation Event or shares of Common Stock, as the case may be, then authorized by the Company's certificate of incorporation and available for the purposes of issuetaking any actions related thereto.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Preferred Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the purchase rights of represented by the Holders of the Preferred Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders holders of the Preferred Shares and shall make the adjustments described therein. The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Agreementthe Preferred Shares, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders holder of the Preferred Shares under this Agreementagainst dilution or other impairment. Without limiting the generality of the foregoing, the Company (1) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock on the exercise of the Preferred Shares from time to time outstanding and (2) will not take any action which results in any adjustment of the number of Preferred Shares if the total number of Preferred Shares, or Convertible Shares issuable after the actionaction upon the exercise of all of the Preferred Shares, would exceed the total number of Preferred Shares or shares of Common Stock, as the case may be, then authorized by the Company's certificate of incorporation and available for the purposes of issue.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment of its certificate of incorporation Charter or through any consolidation, merger, reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this AgreementWarrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders holder of the Shares under this AgreementWarrant hereunder. Without limiting the generality of the foregoing, the Company (1i) will not increase the par value of any shares of Class A Common Stock receivable on the exercise of this Warrant above the amount payable therefor on such exercise, (ii) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable non-assessable shares of Class A Common Stock on the exercise of this Warrant from time to time outstanding and outstanding, (2iii) will not take issue any action Capital Stock which results is preferred as to dividends or as to the distribution of assets upon voluntary or involuntary dissolution, liquidation or winding up, unless the rights of the holders thereof shall be limited to a fixed sum or percentage of par value in respect of participation in dividends and in any adjustment such distribution of assets and (iv) will not transfer all or substantially all of its assets to any other Person or consolidate with or merge into any other Person, or permit any such Person to consolidate with or merge into the number of Shares Company (if the total number Company is not the surviving entity), unless such other Person shall expressly assume in writing and will be bound by all the terms of Shares issuable after this Warrant, the action, would exceed Consent Agreement and the total number of Shares or shares of Common Stock, as the case may be, then authorized by the Company's certificate of incorporation and available for the purposes of issueRegistration Rights Agreement.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the The Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this AgreementWarrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders Holder of the Shares under this AgreementWarrant against dilution or other impairment. Without limiting the generality of the foregoing, the Company shall (1a) will not permit the par value of any shares of stock receivable upon the exercise of this Warrant to exceed the amount payable therefor upon such exercise, (b) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock stock, free from all liens, security interests, encumbrances, taxes, preemptive rights and charges on the exercise of the Warrants from time to time outstanding and outstanding, (2c) will not take any action which results in any adjustment an increase of the number of Shares if the total number of Shares shares of Common Stock (or Other Securities) issuable after the action, action upon the exercise of this Warrant if that total number of issuable shares would exceed the total number of Shares or shares of Common Stock, as the case may be, Stock (or Other Securities) then authorized by the Company's certificate of incorporation and available for the purposes purpose of issueissue upon such exercise, and (d) shall not issue any capital stock of any class which is preferred as to dividends or as to the distribution of assets upon voluntary or involuntary dissolution, liquidation or winding-up, unless the rights of the holders thereof shall be limited to a fixed sum or percentage of par value or a sum determined by reference to a formula based on a published index of interest rates, an interest rate publicly announced by a financial institution or a similar indicator of interest rates in respect of participation in dividends and to a fixed sum or percentage of par value in any such distribution of assets.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 10 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights purchase rights represented by the Shares Warrants in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 410, necessary to preserve, without dilution, the purchase rights of the Holders of the Sharesrepresented by this Warrant. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders holders of the Shares Warrants and shall make the adjustments described therein. The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Agreementthe Warrants, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders holder of the Shares under this AgreementWarrants against dilution or other impairment. Without limiting the generality of the foregoing, the Company (1) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock on the exercise of the Warrants from time to time outstanding and (2) will not take any action which results in any adjustment of the number of Warrant Shares issuable upon exercise of one Warrant if the total number of Warrant Shares issuable after the action, action upon the exercise of all of the Warrants would exceed the total number of Shares or shares of Common Stock, as the case may be, Stock then authorized by the Company's certificate of incorporation and available for the purposes of issueissue upon such exercise. A consolidation, merger, reorganization or transfer of assets involving the Company covered by Section 10(l) shall not be prohibited by or require any adjustment under this subsection (q).

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment of its certificate Certificate of incorporation Incorporation or through any consolidation, merger, reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Agreementthe Warrants, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders holders of the Shares under this AgreementWarrants against dilution or other impairment. Without limiting the generality of the foregoing, the Company (1a) will not increase the par value or stated value of any shares of stock receivable on the EXERCISE of the Warrants above the amount payable therefor on such exercise, (b) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock stock on the exercise of all Warrants from time to time outstanding and outstanding, (2c) will not take issue any action capital stock of any class which results is preferred as to dividends or as to the distribution of assets upon voluntary or involuntary dissolution, liquidation or winding up, unless the rights of the holders thereof shall be limited to a fixed sum or percentage of par value in respect of participation in dividends and in any adjustment such distribution of assets, and (d) will not transfer all or substantially all of its properties and assets to any other person (corporate or otherwise), or consolidate with or merge into any other person or permit any such person to consolidate with or merge into the Company (if the Company is not the surviving person), unless such other person shall expressly assume in writing and become bound by all the terms of the number of Shares if the total number of Shares issuable after the action, would exceed the total number of Shares or shares of Common Stock, as the case may be, then authorized by the Company's certificate of incorporation and available for the purposes of issueWarrants.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this AgreementWarrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders holder of the Shares under this AgreementWarrant against dilution or other impairment. Without limiting the generality of the foregoing, the Company (1a) will not permit the par value of any shares of stock receivable upon the exercise of this Warrant to exceed the amount payable therefor upon such exercise, (b) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock stock upon the exercise of all of the Warrants from time to time outstanding and outstanding, (2c) will not take any action which results in any adjustment of the number of Shares Warrant Price if the total number of Shares shares of Common Stock (or Other Securities) issuable after the action, action upon the exercise of all of the Warrants would exceed the total number of Shares or shares of Common Stock, as the case may be, Stock (or other Securities) then authorized by the Company's certificate of incorporation and available for the purposes purpose of issueissue upon such exercise and, (d) will not issue any capital stock of any class which has the right to more than one vote per share or which is preferred as to dividends or as to the distribution of assets upon voluntary or involuntary dissolution, liquidation or winding-up, unless such stock is sold for a cash consideration at least equal to the amount of its preference upon voluntary or involuntary dissolution, liquidation or winding-up and the rights of the holders thereof shall be limited to a fixed percentage (not exceeding 15%) of such cash consideration in respect of participation in dividends.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the The Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, (i) by amendment of its certificate articles of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, or (ii) prior to the consummation of a Spin-Off and satisfaction of the Company's obligations pursuant to Section 3.3(b), by consent to or approval of any amendment of DSW's articles of incorporation or any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action by DSW, avoid or seek to avoid the observance or performance of any of the terms of this AgreementWarrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders Holder of the Shares under this AgreementWarrant against dilution or other impairment. Without limiting the generality of the foregoing, the Company (1a) will shall not permit the par value of any shares of stock receivable upon the exercise of this Warrant to exceed the amount payable therefor upon such exercise, (b) shall take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of stock, in the case of Common Stock Stock, or transfer shares of DSW Stock, in the case of DSW Stock, free from all liens, security interests, encumbrances (in each of the foregoing cases, other than those imposed by the Holder), taxes, preemptive rights and charges on the exercise of the Warrants from time to time outstanding outstanding, and (2c) will shall not take any action, or consent to the taking or approval of any action by DSW, which results in any adjustment of the number of Shares Purchase Price if the total number of Warrant Shares issuable after the action, action upon the exercise of all of the Warrants would exceed the total number of Shares or shares of Common Stock, as the case may be, Stock then authorized by the Company's certificate articles of incorporation organization, or, in the case of shares of DSW Stock, the number of shares of DSW Stock owned by the Company and available for the purposes purpose of issueissue upon such exercise.

No Dilution or Impairment. The Company hereby acknowledges that the initial number of shares issuable upon exercise of the Warrant was calculated based upon 2.60% of the number of shares of Common Stock, Class B Common Stock and Common Stock Equivalents outstanding and the representation of the Company that the number of shares of Common Stock and Common Stock Equivalents outstanding as of the date hereof (including the Warrant Securities) was Fifteen Million Four Hundred Two Thousand Eight Hundred Thirty (15,402,830) shares. If for any event reason it shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented hereafter be determined by the Shares in accordance with Company that the essential intent actual number of shares of Common Stock, Class B Common Stock and principles Common Stock Equivalents outstanding as of this Sectionthe Date hereof was different from the foregoing, then, in each the Company will notify the Holder(s) of such casedetermination and if the Holder(s) does not dispute the same, the Company shall forthwith reissue the Warrant with an appropriate proportional increase in the Exercise Quantity to be effective from the Date hereof. If a Holder shall dispute such determination and the parties cannot otherwise resolve the dispute promptly and in good faith, then the Company shall appoint an investment banking a firm of independent public accountants of recognized national standing, or any other financial expert that does not standing (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in which may be the Company or any regular auditors of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries), which shall give their opinion upon as to the adjustment, if any, on a basis consistent with to be made to the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the SharesExercise Quantity. Upon receipt of such opinion, the Company will shall promptly mail a copy thereof to the Holders Holder(s) of the Shares Warrant and shall make the adjustments adjustment described therein. It is the intent of the parties hereto that, after giving effect to any exercise of the Warrant, the Holder(s) of the Warrant or Warrant Securities would collectively be the owner of 2.60% of the Common Stock and Common Stock Equivalents (or have the right to acquire 2.60% of the Common Stock and Common Stock Equivalents outstanding as such amount may be adjusted in the event of a cashless exercise of the Warrant according to SECTION 2(a)(ii) or (iii) thereof or other adjustments contemplated herein), except such percentage may be reduced as a consequence of an issuance of Common Stock not requiring any adjustment in the Exercise Price resulting from any Adjustment Transaction in accordance with SECTION 5.02 or other adjustments contemplated herein. Upon any adjustment of the Exercise Price as provided in SECTION 5.02, the Exercise Quantity shall be adjusted so that the New Exercise Quantity shall be equal to the product of (x) the former Exercise Quantity and (y) the following fraction: THE EXERCISE PRICE IN EFFECT IMMEDIATELY PRIOR TO SUCH ADJUSTMENT The Exercise Price resulting from such adjustment EXHIBIT B hereto sets forth the formula and an illustrative example of the manner in which the adjustments contemplated herein should be applied. So long as any part of this Warrant is outstanding, then, without the prior written consent of the Holders of outstanding Warrant(s) evidencing a majority in number of the total number of Warrant Securities at the time purchasable upon the exercise of all then outstanding Warrant(s), the Company will not, by amendment of its certificate of incorporation or through not take any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this AgreementAgreement or the Warrant or impair the ability of the Holder(s) to realize the full intended economic value thereof, but will at all times in good faith assist in the carrying out of all such terms terms, and in of the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders Holder(s) of the Shares under this Agreement. Without limiting the generality of the foregoing, the Company (1) will take all such action as may be necessary Warrant against dilution or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock from time to time outstanding and (2) will not take any action which results in any adjustment of the number of Shares if the total number of Shares issuable after the action, would exceed the total number of Shares or shares of Common Stock, as the case may be, then authorized by the Company's certificate of incorporation and available for the purposes of issueother impairment.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this AgreementWarrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders holder of the Shares under this AgreementWarrant against dilution or other impairment. Without limiting the generality of the foregoing, the Company (1a) will not permit the par value of any shares of stock receivable upon the exercise of this Warrant to exceed the amount payable therefor upon such exercise, (b) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock stock on the exercise of the Warrants from time to time outstanding and outstanding, (2c) will not take any action which results in any adjustment of the number of Shares Warrant Price if the total number of Shares shares of Common Stock (or Other Securities) issuable after the action, action upon the exercise of all of the Warrants would exceed the total number of Shares or shares of Common Stock, as the case may be, Stock (or Other Securities) then authorized by the Company's certificate of incorporation and available for the purposes purpose of issueissue upon such exercise, and (d) will not issue any capital stock of any class which is preferred as to dividends or as to the distribution of assets upon voluntary or involuntary dissolution, liquidation or winding-up, unless the rights of the holders thereof shall be limited to a fixed sum or percentage of par value or a sum determined by reference to a formula based on a published index of interest rates, an interest rate publicly announced by a financial institution or a similar indicator of interest rates in respect of participation in dividends and to a fixed sum or percentage of par value in any such distribution of assets.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment of ------------------------- its certificate Restated Certificate of incorporation Incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this AgreementWarrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders holder of the Shares under this AgreementWarrant against dilution or other impairment. Without limiting the generality of the foregoing, the Company (1a) will not permit the par value of any shares of stock receivable upon the exercise of this Warrant to exceed the amount payable therefor upon such exercise, and, if the warrant purchase price in effect at any time shall be reduced to such par value, the Company will promptly cause the par value of such shares to be reduced to $0.01 below such warrant purchase price, (b) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock stock upon the exercise of all of the Warrants from time to time outstanding and outstanding, (2c) will not take any action which results in any adjustment of the number of Shares warrant purchase price if the total number of Shares shares (or Convertible Securities) issuable after the action, action upon the exercise of all of the Warrants would exceed the to total number of Shares shares (or shares of Common Stock, as the case may be, Convertible Securities) then authorized by the Company's certificate Restated Certificate of incorporation Incorporation and available for the purposes purpose of issueissue upon such exercise, and (d) will not issue any capital stock of any class which as the right to more than one vote per share or which is preferred as to dividends or as to the distribution of assets upon voluntary or involuntary dissolution, liquidation or winding-up, unless such stock is sold for a cash consideration at least equal to the amount of its preference upon voluntary or involuntary dissolution, liquidation or winding-up and the rights of the holders thereof shall be limited to a fixed percentage (not exceeding 15%) of such cash consideration in respect of participation in dividends.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment of its certificate Certificate of incorporation Incorporation or through any consolidation, merger, reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Agreementthe Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders holders of the Shares under this AgreementWarrant against dilution or other impairment. Without limiting the generality of the foregoing, the Company (1a) will not increase the par value or stated value of any shares of stock receivable on the exercise of the Warrant above the amount payable therefor on such stock receivable on the exercise of the Warrant above the amount payable therefor on such exercise, (b) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock from time to time outstanding and stock on the exercise of the Warrant, (2c) will not take issue any action capital stock of any class which results is preferred as to dividends or as to the distribution of assets upon voluntary or involuntary dissolution, liquidation or winding up, unless the rights of the holders thereof shall be limited to a fixed sum or percentage of par value in respect of participation in dividends and in any adjustment such distribution of assets, and (d) will not transfer all or substantially all of its properties and assets to any other person (corporate or otherwise), or consolidate with or merge into any other person or permit any such person to consolidate with or merge into the Company (if the Company is not the surviving person), unless such other person shall expressly assume in writing and become bound by all the terms of the number of Shares if the total number of Shares issuable after the action, would exceed the total number of Shares or shares of Common Stock, as the case may be, then authorized by the Company's certificate of incorporation and available for the purposes of issueWarrant.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this AgreementWarrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders holder of the Shares under this AgreementWarrant against dilution or other impairment. Without limiting the generality of the foregoing, the Company (1a) will not permit the par value of any shares of stock receivable upon the exercise of this Warrant to exceed the amount payable therefor upon such exercise, (b) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock stock on the exercise of the Warrants from time to time outstanding and outstanding, (2c) will not take any action which results in any adjustment of the number of Shares Warrant Price if the total number of Shares shares of Common Stock (or Other Securities) issuable after the action, action upon the exercise of the Warrant would exceed the total number of Shares or shares of Common Stock, as the case may be, Stock (or Other Securities) then authorized by the Company's certificate of incorporation and available for the purposes purpose of issueissue upon such exercise, and (d) will not issue any capital stock of any class which is preferred as to dividends or as to the distribution of assets upon voluntary or involuntary dissolution, liquidation or winding-up, unless the rights of the holders thereof shall be limited to a fixed sum or percentage of par value or a sum determined by reference to a formula based on a published index of interest rates, an interest rate publicly announced by a financial institution or a similar indicator of interest rates in respect of participation in dividends and to a fixed sum or percentage of par value in any such distribution of assets.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment of its certificate of incorporation governance documents or through any consolidationreorganization, mergerreclassification, reorganizationmodification, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this AgreementWarrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders Holder of this Warrant against dilution (for which an adjustment hereunder is not specifically provided and which would have the Shares under this Agreementsame type of adverse financial effect on the Holder as that for which an anti-dilution adjustment is specifically provided hereunder) or other impairment. Without limiting the generality of the foregoing, the Company (1a) will at all times reserve and keep available the maximum number of its authorized Shares, free from all preemptive rights therein, which number of authorized Shares will be sufficient to permit the full exercise of this Warrant, and (b) will take all such action as may be necessary or appropriate in order that all Shares as may be issued pursuant to the Company may exercise of this Warrant will, upon issuance, be duly and validly and legally issue issued, fully paid and nonassessable shares of Common Stock nonassessable, and free from time all taxes, liens and charges with respect to time outstanding and (2) the issue thereof. The Company will not take any action which results in any adjustment of the number of Shares if the total number of Shares issuable after the action, would exceed the total number of Shares or shares of Common Stock, as the case may be, then authorized by the Company's amend its certificate of incorporation in any manner which would affect the Shares into which the Warrants are exercisable in a manner that is different than the effect which such amendment would have on other Shares (and available for is adverse in respect of the purposes of issueShares).

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment ------------------------- of its certificate articles of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Agreement, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders holders of the Shares under this AgreementWarrants against dilution or other impairment. Without limiting the generality of the foregoing, the Company (1a) will not permit the par value of any shares of stock receivable upon the exercise of Warrants to exceed the amount payable therefor upon such exercise, and, if the Exercise Price in effect at any time shall be reduced to such par value, the Company will promptly cause the par value of such shares to be reduced to $0.01, (b) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock stock upon the exercise of all of the Warrants from time to time outstanding and outstanding, (2c) will not take any action which Warrant Agreement ----------------- results in any adjustment of the number of Shares Exercise Price if the total number of Shares shares of Common Stock (or Other Securities) issuable after the action, action upon the exercise of all of the Warrants would exceed the total number of Shares or shares of Common Stock, as the case may be, Stock (or Other Securities) then authorized by the Company's certificate of incorporation and available for the purposes purpose of issueissue upon such exercise, (d) will not issue any capital stock of any class which has the right to more than one vote per share and (e) will not issue any security other than Common Stock unless the rights of the holders thereof shall be limited to a fixed sum or percentage of par value or a sum determined by reference to a formula based on a published index of interest rates, an interest rate publicly announced by a financial institution or a similar indicator of interest rates in respect of interest or participation in dividends and to a fixed sum or percentage of par value as principal or in any distribution of assets.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares No Changes in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the SharesCapital Stock. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. ------------------------------------------------------ The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this the Stock Purchase Agreements, the Certificate of Designations, the Registration Rights Agreement or the Stockholders' Agreement, but . The Company will at all times in good faith assist in the carrying out of all such terms terms, and in the taking of all such action action, as may be necessary or appropriate in order to protect the rights of the Holders holders of Shares (as such rights are set forth in the Shares under this Stock Purchase Agreements, the Certificate of Designations, the Registration Rights Agreement and the Stockholders' Agreement) against dilution or other impairment. Without limiting the generality of the foregoing, the Company (1a) will not issue any shares or class or series of equity or equity-linked security, the equity of which is senior to, or pari passu with, the Series A Convertible Preferred Stock as to dividend payments or amounts payable in the event of liquidation or winding up of the Company, (b) except as set forth in Section 9.9 hereof, will not enter into any agreement or instrument which would restrict or otherwise materially adversely affect the ability of the Company to perform its obligations under the Stock Purchase Agreements, the Stockholders' Agreement, the Registration Rights Agreement or the Certificate of Designations, (c) will not amend its certificate of incorporation or by-laws in any manner which would impair or reduce the rights of the Preferred Stock, including, without limitation, an amendment which would alter or change the powers, privileges or preferences of the holders of the Series A Convertible Preferred Stock (including, without limitation, changing the Certificate of Designations after any Shares have been called for redemption), (d) except as otherwise provided in the Certificate of Designations, will not redeem, repurchase or otherwise acquire, either directly or indirectly through any of its Subsidiaries, any shares of capital stock of the Company or any of its Subsidiaries or any other rights or options to subscribe for or purchase any capital stock of the Company or any other securities convertible into or exchangeable for capital stock of the Company, (e) will not permit the par value or the determined or stated value of any shares of Common Stock receivable upon the conversion of the Shares to exceed the amount payable therefor upon such conversion, (f) will take all such action as may be necessary or appropriate in order that the Company may at all times validly and legally issue duly authorized, fully paid and nonassessable shares of the Common Stock free from all taxes, Liens and charges with respect to the issue thereof, upon the conversion of the Shares from time to time outstanding and outstanding, (2g) will not take any action which results in any adjustment of the number current conversion price under the Certificate of Shares Designations if the total number of Shares shares of the Common Stock (or other securities) issuable after the action, action upon the conversion of all of the then outstanding Shares would exceed the total number of Shares or shares of Common Stock, as the case may be, Stock (or other securities) then authorized by the Company's certificate of incorporation and available for the purposes purpose of issueissuance upon such conversion, (h) will not have any authorized Common Stock (and will not issue any Common Stock) other than its existing authorized Common Stock, $.01 par value per share, and (i) will not amend its certificate of incorporation to change any terms of its Common Stock.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights ownership interest in Holdings and rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company Holdings shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company Holdings or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the CompanyHoldings, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company Holdings or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the ownership interest in Holdings and other rights of the Holders of the Sharesrepresented by each Share. Upon receipt of such opinion, the Company Holdings will promptly mail a copy thereof to the Holders holders of the Shares and shall make the adjustments described therein. The Company Holdings will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Agreement, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders each holder of the Shares under this Agreementagainst dilution or other impairment. Without limiting the generality of the foregoing, the Company Holdings (1) will take all such action as may be necessary or appropriate in order that the Company Holdings may validly and legally issue fully paid and nonassessable shares of Common Stock on the exercise of the Adjustment Rights from time to time outstanding and (2) will not take any action which results in any adjustment of the number of Shares issuable upon exercise of such Adjustment Rights if the total number of Shares issuable after the action, action upon the exercise of all of the Adjustment Rights would exceed the total number of Shares or shares of Common Stock, as the case may be, Stock then authorized by the Company's Holdings' certificate of incorporation and available for the purposes of issueissue upon such exercise. A consolidation, merger, reorganization or transfer of assets involving the Company covered by Section 4(i) shall not be prohibited by or require any adjustment under this subsection (1).

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares No Changes in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described thereinCapital Stock. The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this the Stock Purchase Agreements, the Certificate of Amendment, the Registration Rights Agreement or the Stockholders' Agreement, but . The Company will at all times in good faith assist in the carrying out of all such terms terms, and in the taking of all such action action, as may be necessary or appropriate in order to protect the rights of the Holders holders of Shares (as such rights are set forth in the Shares under this Stock Purchase Agreements, the Certificate of Amendment, the Registration Rights Agreement and the Stockholders' Agreement) against dilution or other impairment. Without limiting the generality of the foregoing, the Company (1a) will not issue any shares or class or series of equity or equity-linked security, which is senior to, or pari passu with, the Series A Convertible Preferred Stock as to dividend payments or amounts payable in the event of liquidation or winding up of the Company, (b) will not enter into any agreement or instrument which would restrict or otherwise materially adversely affect the ability of the Company to perform its obligations under the Stock Purchase Agreements, the Stockholders' Agreement, the Registration Rights Agreement or the Certificate of Amendment, (c) will not amend its certificate of incorporation or by-laws in any manner which would impair or reduce the rights of the Preferred Stock, including, without limitation, an amendment which would alter or change the powers, privileges or preferences of the holders of the Series A Convertible Preferred Stock (including, without limitation, changing the Certificate of Amendment after any Shares have been called for redemption), (d) except as otherwise provided in the Certificate of Amendment, will not redeem, repurchase or otherwise acquire any shares of capital stock of the Company or any other rights or options to subscribe for or purchase any capital stock of the Company or any other securities convertible into or exchangeable for capital stock of the Company, (e) will not permit the par value or the determined or stated value of any shares of Common Stock receivable upon the conversion of the Shares to exceed the amount payable therefor upon such conversion, (f) will take all such action as may be necessary or appropriate in order that the Company may at all times validly and legally issue duly authorized, fully paid and nonassessable shares of the Common Stock free from all Taxes, Liens and charges with respect to the issue thereof, upon the conversion of the Shares from time to time outstanding and outstanding, (2g) will not take any action which results in any adjustment of the number current conversion price under the Certificate of Shares Amendment if the total number of Shares shares of the Common Stock (or other securities) issuable after the action, action upon the conversion of all of the then outstanding Shares would exceed the total number of Shares or shares of Common Stock, as the case may be, Stock (or other securities) then authorized by the Company's certificate of incorporation and available for the purposes purpose of issueissuance upon such conversion, provided, that nothing contained herein shall require the Company to make an ultra vxxxx issuance of Common Stock, (h) will not have any authorized Common Stock (and will not issue any Common Stock) other than its existing authorized Common Stock, $.01 par value per share, and (i) will not amend its certificate of incorporation to change any terms of its Common Stock.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue issuance or sale of securities securities, or any other voluntary actionaction or omission, avoid or seek to avoid the observance or performance of any of the terms of this AgreementAgreement or any of the New Class 11 Class A Warrants issued hereunder, but will at all times in good faith assist in the carrying out of observe and perform all such terms and in the taking of take all such action as may be necessary or appropriate in order to protect the rights of the Holders each holder of a New Class 11 Class A Warrant against dilution or other impairment of the Shares under kind specified herein, provided, however, that, subject to compliance with the applicable provisions of this Agreement, the Company shall not be prohibited by this Article VII nor by any provision of this Agreement from making decisions providing for, inter alia, the merger or consolidation of the Company or the sale of its assets which transactions, in the judgment of the Company’s board of directors, are in the best interests of the Company and its stockholders. Without limiting the generality of the foregoing, the Company (1a) will not permit the par value of any shares of stock receivable upon the exercise of any New Class 11 Class A Warrant to exceed the amount payable therefore upon such exercise, (b) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock stock upon the exercise of all of the New Class 11 Class A Warrants from time to time outstanding outstanding, and (2c) will not take any action which that results in any adjustment of the number shares issuable upon exercise of Shares the New Class 11 Class A Warrants if the total number of Shares shares of Common Stock issuable after the action, action upon the exercise of all of the New Class 11 Class A Warrants would exceed the total number of Shares or shares of Common Stock, as the case may be, Stock then authorized by the Company's ’s certificate of incorporation and available for the purposes purpose of issueissuance upon such exercise.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this AgreementWarrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as the Company in good faith shall determined may be necessary or appropriate in order to protect the rights of the Holders holder of the Shares under this AgreementWarrant against dilution or other impairment. Without limiting the generality of the foregoing, the Company (1a) will not permit the par value of any shares of stock receivable upon the exercise of this Warrant to exceed the amount payable therefor upon such exercise, and, if the Warrant Price in effect at any time shall be reduced to such par value, the Company will promptly cause the par value of such shares to be reduced to $0.01, (b) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock stock upon the exercise of all of the Warrants from time to time outstanding and outstanding, (2c) will not take any action which results in any adjustment of the number of Shares Warrant Price if the total number of Shares shares of Common Stock (or Other Securities) issuable after the action, action upon the exercise of all of the Warrants would exceed the total number of Shares or shares of Common Stock, as the case may be, Stock (or other Securities) then authorized by the Company's certificate of incorporation and available for the purposes purpose of issue.issue upon such exercise and, (d) will not issue any capital stock of any class which has the right to more than one vote per share or which is preferred as to dividends or as to the distribution of assets upon voluntary or involuntary dissolution, liquidation or winding-up, unless such stock is sold for a cash consideration at least equal to the amount of its

No Dilution or Impairment. The Company hereby acknowledges that the initial number of shares issuable upon exercise of the Warrants was calculated based upon 1.88% of the number of shares of Common Stock, Class B Common Stock and Common Stock Equivalents outstanding and the representation of the Company that the number of shares of Common Stock and Common Stock Equivalents outstanding as of the Closing Date (including the Warrant Securities) was Fourteen Million Eight Hundred Ninety-Five Thousand Thirty-Four (14,895,034) shares. If for any event reason it shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented hereafter be determined by the Shares in accordance with Company that the essential intent actual number of shares of Common Stock, Class B Common Stock and principles Common Stock Equivalents outstanding as of this Sectionthe Closing Date was different from the foregoing, then, in each the Company will notify the Holder(s) of such casedetermination and if the Holder(s) does not dispute the same, the Company shall forthwith reissue the Warrants with an appropriate proportional increase in the Exercise Quantity to be effective from the Closing Date. If a Holder shall dispute such determination and the parties cannot otherwise resolve the dispute promptly and in good faith, then the Company shall appoint an investment banking a firm of independent public accountants of recognized national standing, or any other financial expert that does not standing (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in which may be the Company or any regular auditors of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries), which shall give their opinion upon as to the adjustment, if any, on a basis consistent with to be made to the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the SharesExercise Quantity. Upon receipt of such opinion, the Company will shall promptly mail a copy thereof to the Holders Holder(s) of the Shares Warrants and shall make the adjustments adjustment described therein. It is the intent of the parties hereto that, after giving effect to any exercise of the Warrants, the Holder(s) of the Warrants or Warrant Securities would collectively be the owner of 1.88% of the Common Stock and Common Stock Equivalents (or have the right to acquire 1.88% of the Common Stock and Common Stock Equivalents outstanding as such amount may be adjusted in the event of a cashless exercise of the Warrants according to SECTION 2(a)(II) or (III) thereof or other adjustments contemplated herein), except such percentage may be reduced as a consequence of an issuance of Common Stock not requiring any adjustment in the Exercise Price resulting from any Adjustment Transaction in accordance with SECTION 5.02 or other adjustments contemplated herein. Upon any adjustment of the Exercise Price as provided in SECTION 5.02, the Exercise Quantity shall be adjusted so that the New Exercise Quantity shall be equal to the product of (x) the former Exercise Quantity and (y) the following fraction: The Exercise Price in effect immediately prior to such adjustment ----------------------------------------------------------------- The Exercise Price resulting from such adjustment EXHIBIT B hereto sets forth the formula and an illustrative example of the manner in which the adjustments contemplated herein should be applied. So long as any Warrants are outstanding, then, without the prior written consent of the Holders of outstanding Warrants evidencing a majority in number of the total number of Warrant Securities at the time purchasable upon the exercise of all then outstanding Warrants, the Company will not: (a) amend the Certificate of Incorporation or the By-Laws of the Company (or any equivalent documents) with respect to the Company's capital stock; (b) merge or consolidate with or into another Person or voluntarily reorganize, liquidate, dissolve or wind up its affairs; (c) make any payment (in cash or property) to or enter into any other transaction with, any party to this Agreement or any stockholder or securityholder of the Company or any Affiliate thereof other than payments made, or transactions expressly contemplated by amendment of its certificate of incorporation this Agreement, the Securities Purchase Agreement or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue the Senior Debt Agreement; or sale of securities or (d) take any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this AgreementAgreement or the Warrants or impair the ability of the Holder(s) to realize the full intended economic value thereof, but will at all times in good faith assist in the carrying out of all such terms terms, and in of the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders Holder(s) of the Shares under this Agreement. Without limiting the generality of the foregoing, the Company (1) will take all such action as may be necessary Warrants against dilution or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock from time to time outstanding and (2) will not take any action which results in any adjustment of the number of Shares if the total number of Shares issuable after the action, would exceed the total number of Shares or shares of Common Stock, as the case may be, then authorized by the Company's certificate of incorporation and available for the purposes of issueother impairment.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment of its certificate ------------------------- Certificate of incorporation Incorporation or through any consolidation, merger, reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Agreementthe Warrants, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders holders of the Shares under this AgreementWarrants against dilution or other impairment. Without limiting the generality of the foregoing, the Company (1a) will not increase the par value or stated value of any shares of stock receivable on the exercise of the Warrants above the amount payable therefor on such stock receivable on the exercise of the Warrants above the amount payable therefor on such exercise, (b) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock stock on the exercise of all warrants from time to time outstanding outstanding, (c) except for the issuance of shares of Series A Participating Cumulative Convertible Preferred Stock pursuant to that certain Stock Purchase Agreement dated June 29, 2001 among the Company and the investors named therein, will not issue any capital stock of any class which is preferred as to dividends or as to the distribution of assets upon voluntary or involuntary dissolution, liquidation or winding up, unless the rights of the holders thereof shall be limited to a fixed sum or percentage of par value in respect of participation in dividends and in any such distribution of assets, and (2d) will not take transfer all or substantially all of its properties and assets to any action which results other person (corporate or otherwise), or consolidate with or merger into any other person or permit any such person to consolidate with or merger into the Company (if the Company is not the surviving person), unless such other person shall expressly assume in any adjustment writing and become bound by all the terms of the number of Shares if the total number of Shares issuable after the action, would exceed the total number of Shares or shares of Common Stock, as the case may be, then authorized by the Company's certificate of incorporation and available for the purposes of issueWarrants.

No Dilution or Impairment. Capital and Ownership ------------------------------------------------ Structure. If any event shall occur as to which the provisions of this Section 4 10 are --------- not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights purchase rights represented by the Shares Warrants in accordance with the essential intent and principles of this such Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert standing that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who which has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 410, necessary to preserve, without dilution, the purchase rights of represented by the Holders of the SharesWarrants. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders holders of the Shares Warrants and shall make the adjustments described therein. The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Agreementthe Warrants, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders holder of the Shares under this AgreementWarrants against dilution or other impairment. Without limiting the generality of the foregoing, the Company (1a) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock on the exercise of the Warrants from time to time outstanding and (2b) will not take any action which results in any adjustment of the number of Shares Exercise Price if the total number of Warrant Shares issuable after the action, action upon the exercise of all of the Warrants would exceed the total number of Shares or shares of Common Stock, as the case may be, Stock then authorized by the Company's certificate of incorporation and available for the purposes of issueissue upon such exercise. A consolidation, merger, reorganization or transfer of assets involving the Company covered by Section 10(m) shall not be prohibited by or require any adjustment under this Section 12.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment of its certificate of incorporation the LLC Agreement or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue issuance or sale of securities or any other voluntary actionaction or omission, avoid or seek to avoid the observance or performance of any of the terms of this AgreementAgreement or any of the Warrants issued hereunder, but will at all times in good faith assist in the carrying out of observe and perform all such terms and in the taking of take all such action as may be necessary or appropriate in order to protect the rights of the Holders each holder of a Warrant against dilution or other impairment of the Shares under kind provided herein; provided, however, that, subject to compliance with the applicable provisions of this Agreement, the Company shall not be prohibited by this Article 8 or by any provision of this Agreement from making decisions providing for, inter alia, any Sale Transaction or any other transaction which, in the judgment of the members, is in the best interests of the Company and its members. Without limiting the generality of the foregoing, the Company (1a) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares Units upon the exercise of Common Stock all of the Warrants from time to time outstanding and outstanding, (2b) will not take any action which that results in any adjustment of the number Units upon exercise of Shares the Warrants if the total number of Shares Units issuable after the action, action upon the exercise of all of the Warrants would exceed the total number of Shares or shares of Common Stock, as the case may be, Units then authorized to be issued by the Company's certificate LLC Agreement to the extent that the authorization of incorporation such issuance is required to be so authorized, (c) will not issue any class of membership interests that is preferred as to the distribution of assets upon voluntary or involuntary dissolution, liquidation or winding-up, unless such stock is sold for a cash consideration at least equal to the amount of such preference upon voluntary or involuntary dissolution, liquidation or winding-up and available for (d) use its best efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof as may be necessary to enable the purposes of issueCompany to perform its obligations under this Agreement.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue issuance or sale of securities securities, or any other voluntary actionaction or omission, avoid or seek to avoid the observance or performance of any of the terms of this AgreementAgreement or any of the Warrants issued hereunder, but will at all times in good faith assist in the carrying out of observe and perform all such terms and in the taking of take all such action as may be necessary or appropriate in order to protect the rights of the Holders each holder of a Warrant against dilution or other impairment of the Shares under kind specified herein, provided, however, that, subject to compliance with the applicable provisions of this Agreement, the Company shall not be prohibited by this Article 8 or by any provision of this Agreement from making decisions providing for, inter alia, the merger or consolidation of the Company or the sale of its assets which transactions, in the judgment of the Company's board of directors, are in the best interests of the Company and its stockholders. Without limiting the generality of the foregoing, the Company (1a) will not permit the par value of any shares of stock receivable upon the exercise of any Warrant to exceed the amount payable therefor upon such exercise, (b) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock stock upon the exercise of all of the Warrants from time to time outstanding outstanding, and (2c) will not take any action which that results in any adjustment of the number shares issuable upon exercise of Shares the Warrants (or which entitles the holders of the Warrants to receive Other Securities upon such exercise) if the total number of Shares shares of Common Stock (or Other Securities) issuable after the action, action upon the exercise of all of the Warrants would exceed the total number of Shares or shares of Common Stock, as the case may be, Stock (or Other Securities) then authorized by the Company's certificate of incorporation and available for the purposes purpose of issueissuance upon such exercise.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment ------------------------- of its certificate articles of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Agreement, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders holders of the Shares under this AgreementWarrants against dilution or other impairment. Without limiting the generality of the foregoing, the Company (1a) will not permit the par value of any shares of stock receivable upon the exercise of Warrants to exceed the amount payable therefor upon such exercise, and, if the Exercise Price in effect at any time shall be reduced to such par value, the Company will promptly cause the par value of such shares to be reduced to $0.01, (b) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock stock upon the exercise of all of the Warrants from time to time outstanding and outstanding, (2c) will not take any action which results in any adjustment of the number of Shares Exercise Price if the total number of Shares shares of Common Stock (or Other Securities) issuable after the action, action upon the exercise of all of the Warrants would exceed the total number of Shares or shares of Common Stock, as the case may be, Stock (or Other Securities) then authorized by the Company's certificate Articles of incorporation Incorporation and available for the purposes purpose of issueissue upon such exercise, (d) will not issue any capital stock of any class which has the right to more than one vote per share and (e) will not issue any security other than Common Stock unless the rights of the holders thereof shall be limited to a fixed sum or percentage of par value or a sum determined by reference to a formula based on a published index of interest rates, an interest rate publicly announced by a financial institution or a similar indicator of interest rates in respect of interest or participation in dividends and to a fixed sum or percentage of par value as principal or in any distribution of assets.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the The Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this AgreementWarrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders Holder of the Shares under this AgreementWarrant against dilution or other impairment. Without limiting the generality of the foregoing, the Company shall (1a) will not permit the par value of any shares of stock receivable upon the exercise of this Warrant to exceed the amount payable therefor upon such exercise, (b) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock stock, free from all liens, security interests, encumbrances (in each of the foregoing cases, other than those imposed by the Holder), taxes, preemptive rights and charges on the exercise of the Warrants from time to time outstanding and outstanding, (2c) will not take any action which results in any adjustment an increase of the number of Shares if the total number of Shares shares of Common Stock (or Other Securities) issuable after the action, action upon the exercise of this Warrant if that total number of issuable shares would exceed the total number of Shares or shares of Common Stock, as the case may be, Stock (or Other Securities) then authorized by the Company's ’s certificate of incorporation and available for the purposes purpose of issueissue upon such exercise, and (d) shall not issue any capital stock of any class which is preferred as to dividends or as to the distribution of assets upon voluntary or involuntary dissolution, liquidation or winding-up, unless the rights of the holders thereof shall be limited to a fixed sum or percentage of par value or a sum determined by reference to a formula based on a published index of interest rates, an interest rate publicly announced by a financial institution or a similar indicator of interest rates in respect of participation in dividends and to a fixed sum or percentage of par value in any such distribution of assets.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment ------------------------- of its certificate articles of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Agreement, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders holders of the Shares under this AgreementWarrants against dilution or other impairment. Without limiting the generality of the foregoing, the Company (1a) will not permit the par value of any shares of stock receivable upon the exercise of Warrants to exceed the amount payable therefor upon such exercise, and, if the Exercise Price in effect at any time shall be reduced to such par value, the Company will promptly cause the par value of such shares to be reduced to $0.01, (b) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock stock upon the exercise of all of the Warrants from time to time outstanding and outstanding, (2c) will not take any action which results in any adjustment of the number of Shares Exercise Price if the total number of Shares shares of Common Stock (or Other Securities) issuable after the action, action upon the exercise of all of the Warrants would exceed the total number of Shares or shares of Common Stock, as the case may be, Stock (or Other Securities) then authorized by the Company's certificate of incorporation and available for the purposes purpose of issueissue upon such exercise, (d) will not issue any capital stock of any class which has the right to more than one vote per Warrant Agreement ----------------- share and (e) will not issue any security other than Common Stock unless the rights of the holders thereof shall be limited to a fixed sum or percentage of par value or a sum determined by reference to a formula based on a published index of interest rates, an interest rate publicly announced by a financial institution or a similar indicator of interest rates in respect of interest or participation in dividends and to a fixed sum or percentage of par value as principal or in any distribution of assets.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this AgreementWarrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders holder of the Shares under this AgreementWarrant against dilution or other impairment. Without limiting the generality of the foregoing, the Company (1a) will not permit the par value of any shares of stock receivable upon the exercise of this Warrant to exceed the amount payable therefor upon such exercise, (b) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock stock on the exercise of the Warrants from time to time outstanding and outstanding, (2c) will not take any action which results in any adjustment of the number of Shares Warrant Price if the total number of Shares shares of Common Stock (or Other Securities) issuable after the action, action upon the exercise of all of the Warrants would exceed the total number of Shares or shares of Common Stock, as the case may be, Stock (or Other Securities) then authorized by the Company's ’s certificate of incorporation and available for the purposes purpose of issueissue upon such exercise, and (d) will not issue any capital stock of any class which is preferred as to dividends or as to the distribution of assets upon voluntary or involuntary dissolution, liquidation or winding-up, unless the rights of the holders thereof shall be limited to a fixed sum or percentage of par value or a sum determined by reference to a formula based on a published index of interest rates, an interest rate publicly announced by a financial institution or a similar indicator of interest rates in respect of participation in dividends and to a fixed sum or percentage of par value in any such distribution of assets.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities (other than the shares of Common Stock and Preferred Stock issued on the date of the Closing under the Purchase Agreement and any securities issued upon conversion or exchange thereof) or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this AgreementWarrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders holder of the Shares under this AgreementWarrant against dilution or other impairment. Without limiting the generality of the foregoing, the Company (1a) will not permit the par value of any shares of stock receivable upon the exercise of this Warrant to exceed the amount payable therefor upon such exercise, (b) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock stock upon the exercise of all of the Warrants from time to time outstanding and outstanding, (2c) will not take any action which results in any adjustment of the number of Shares Warrant Price if the total number of Shares shares of Common Stock (or Other Securities) issuable after the action, action upon the exercise of all of the Warrants would exceed the total number of Shares or shares of Common Stock, as the case may be, Stock (or other Securities) then authorized by the Company's certificate of incorporation and available for the purposes purpose of issueissue upon such exercise and, (d) will not issue any capital stock of any class which has the right to more than one vote per share or which is preferred as to dividends or as to the dis-tribution of assets upon voluntary or involuntary dissolution, liquidation or winding-up, unless such stock is sold for a cash consideration at least equal to the amount of its preference upon voluntary or involuntary dissolution, liquidation or winding-up and the rights of the holders thereof shall be limited to a fixed percentage (not exceeding 15%) of such cash consideration in respect of participation in dividends.

No Dilution or Impairment. If any event TheCompany shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this AgreementWarrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders of the Shares under this AgreementWarrantholder against dilution or other impairment. Without limiting the generality of the foregoing, the Company (1i) will shall not permit the par value of any shares of stock receivable upon the exercise of this Warrant to exceed the amount payable therefor upon such exercise, (ii) shall take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock stock, free from all taxes, liens, security interests, encumbrances, preemptive rights and charges on the exercise of the Warrants from time to time outstanding outstanding, and (2iii) will shall not take any action which results in any adjustment of the number of Shares if the total number of Shares shares of Common Stock issuable after the action, action upon the exercise of all of the Warrants if such number of issuable shares would exceed the total number of Shares or shares of Common Stock, as the case may be, then Stockthen authorized by the Company's certificate of incorporation and available for the purposes purpose of issueissue upon such exercise.The Company shall provide Warrantholder with prior written notice of any issuance of its stock or other equity security to occur after the Effective Date of this Agreement, which notice shall include (a) the price at which such stock or security is to be sold, (b) the number of shares to be issued, and (c) such other information as necessary for Warrantholder to determine if a dilutive event has occurred or will occur. For the avoidance of doubt, in the event that a dilutive event is to take place, this Warrant shall be adjusted appropriately so as to maintain Warrantholder’s Applicable Percentage.

No Dilution or Impairment. Capital and Ownership ------------------------------------------------ Structure. If any event shall occur as to which the provisions of this Section 4 11 are --------- not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights purchase rights represented by the Shares Warrants in accordance with the essential intent and principles of this such Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert standing that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 411, necessary to preserve, without dilution, the purchase rights of represented by the Holders of the SharesWarrants. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders holders of the Shares Warrants and shall make the adjustments described therein. The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Agreementthe Warrants, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders holder of the Shares under this AgreementWarrants against dilution or other impairment. Without limiting the generality of the foregoing, the Company (1a) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock on the exercise of the Warrants from time to time outstanding and (2b) will not take any action which results in any adjustment of the number of Shares Exercise Price if the total number of Warrant Shares issuable after the action, action upon the exercise of all of the Warrants would exceed the total number of Shares or shares of Common Stock, as the case may be, Stock then authorized by the Company's certificate of incorporation and available for the purposes of issueissue upon such exercise. A consolidation, merger, reorganization or transfer of assets involving the Company covered by Section 11(m) shall not be prohibited by or require any adjustment under this Section 13.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment of -------------------------- its certificate articles of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this AgreementWarrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders of the Shares under this Agreement. Holder against dilution or other impairment.Without limiting the generality of the foregoing, the Company (1a) shall not permit the par value of any shares of stock - receivable upon the exercise of this Warrant to exceed the amount payable therefor upon such exercise, (b) will take all such action as may be necessary - or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock stock, free from all taxes, liens, security interests, encumbrances, preemptive rights and charges on the exercise of the Warrants from time to time outstanding and outstanding, (2c) will not take any action which - results in any adjustment of the number of Shares Warrant Quantity if the total number of Shares shares of Common Stock (or Other Securities) issuable after the action, action upon the exercise of all of the Warrants would exceed the total number of Shares or shares of Common Stock, as the case may be, Stock (or Other Securities) then authorized by the Company's certificate articles of incorporation and available and reserved for the purposes purpose of issueissue upon such exercise, and (d) will not issue any capital stock of any class which is - preferred as to dividends or as to the distribution of assets upon voluntary or involuntary dissolution, liquidation or winding-up, unless the rights of the holders thereof shall be limited to a fixed sum or percentage of par value or a sum determined by reference to a formula based on a published index of interest rates, an interest rate publicly announced by a financial institution or a similar indicator of interest rates in respect of participation in dividends and to a fixed sum or percentage of par value in any such distribution of assets.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares No Changes in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. Capital Stock The Company will not, without the prior consent of holders owning a majority of the outstanding Shares, by amendment of its certificate Series D Certificate of incorporation Designation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue issuance or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Agreement, but the Transaction Documents or impair or reduce the rights of the holders of the Shares as a class. The Company will at all times in good faith assist in the carrying out of all such terms terms, and in the taking of all such action action, as may be necessary or appropriate in order to protect the rights of the Holders holders of Shares as such rights are set forth in the Shares under this AgreementTransaction Documents and the Company's Series D Certificate of Designation, against impairment. Without limiting the generality of the foregoing, the Company Company: (1a) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of the Company's Common Stock free from all taxes, liens and charges with respect to the issue thereof, upon the conversion of the Shares, from time to time outstanding and time, (2b) will not take any action which results in any adjustment of the number basis of Shares conversion of the shares described in the Company's Series D Certificate of Designation if the total number of shares of the Company's Common Stock issuable upon the conversion of all of the then outstanding Shares issuable after the action, would exceed the total number of Shares or shares of the Company's Common Stock then designated under the Company's Series D Certificate of Designation and authorized for the purpose of issuance upon such conversion, (c) will not have any authorized Common Stock other than its existing authorized class of Common Stock, (d) will not amend its Certificate of Incorporation to change any terms of its Common Stock, (e) will not amend its Series D Certificate of Designation in any manner to alter or change the powers, privileges or preferences of the holders of the Series D Preferred Stock (including without limitation amendments to its Series D Certificate of Designation after any Shares have been called for redemption), (f) will not create or authorize any obligation or security convertible into shares of Series D Preferred Stock or into shares of any other class or series of stock unless the same ranks pari passu to the Series D Preferred Stock as to the case may bepayment of dividends and the distribution of assets on the liquidation, then authorized by dissolution or winding up of the Company's certificate , whether any such creation, authorization or increase shall be by means of incorporation amendment to the Series D Certificate of Designation or by merger, consolidation or otherwise and available for (g) after the purposes date hereof, (i) will not increase the number of issue.shares of Common Stock covered under its Stock Option Plan or any other option plan, and (ii) will not create or establish (or make any grants or awards under) any stock, phantom stock, stock appreciation

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the The Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment of its certificate of incorporation or other organizational document or through any sale or other issuance of securities, capital reorganization, reclassification, recapitalization, consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities liquidation, winding-up, any similar transaction or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Agreement, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders each Holder of the Shares under this AgreementWarrants against dilution or other impairment. Without limiting the generality of the foregoing, the Company (1a) will not permit the par value of any shares of Common Stock or Other Securities receivable upon the exercise of any Warrant to exceed the Exercise Price, (b) will not take any action which results in any adjustment to the Exercise Price if the number of shares of Common Stock or Other Securities authorized by the Company's certificate of incorporation and available for issuance upon the exercise of Warrants will be less than the number of shares of Common Stock or Other Securities that Holders may be entitled to receive upon the exercise of all outstanding Warrants and (c) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock from time or Other Securities upon the exercise by Holders of all outstanding Warrants. Without limiting the generality of the foregoing, before taking any action that would cause a reduction of the Exercise Price pursuant to time outstanding and SECTION 6 hereof below the then par value (2if any) will not of the Common Stock or Other Securities, the Company shall take any and all corporate action (including, without limitation, a reduction in par value) which results in any adjustment of the number of Shares if the total number of Shares issuable after the action, would exceed the total number of Shares or shall be necessary to validly and legally issue fully paid and nonassessable shares of Common StockStock or Other Securities, as the case may be, then authorized by at the Company's certificate of incorporation and available for the purposes of issueExercise Price as so reduced.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company APGC will not, by amendment of its certificate of incorporation charter or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this AgreementOption, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders holder of the Shares under this AgreementOption against dilution or other impairment. Without limiting the generality of the foregoing, APGC (a) will not permit the Company par value of any Shares receivable upon the exercise of this Option to exceed the amount payable therefor upon such exercise, (1b) will take all such action as may be necessary or appropriate in order that the Company APGC may validly and legally issue fully paid and nonassessable shares non-assessable Shares on the exercise of Common Stock the Options from time to time outstanding and time, (2c) will not take any action which results in any adjustment of the number of Shares Option Share Price if the total number of Shares issuable after the action, action upon full exercise of the Option would exceed the total number of Shares or shares of Common Stock, as the case may be, then authorized by the CompanyAPGC's certificate of incorporation Charter and available for the purposes purpose of issueissue upon such exercise, and (d) will not authorize any additional Shares of capital stock of any class which is preferred as to dividends or as to the distribution of assets upon voluntary or involuntary dissolution, liquidation or winding-up, unless the rights of the holders thereof shall be limited to a fixed sum or percentage of par value or a sum determined by reference to a formula based on a published index of interest rates, an interest rate publicly announced by a financial institution or a similar indicator of interest rates in respect of participation in dividends and to a fixed sum or percentage of par value in any such distribution of assets. In case any event shall occur as to which any of the provisions of this Option are not strictly applicable but the failure to make any adjustment would not fairly protect the purchase rights represented by this Option in accordance with the essential intent and principles contained herein, then, in each such case, APGC shall, at its sole cost and expense, appoint a firm of independent certified public accountants of recognized national standing (which may be the regular auditors of APGC), which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established herein, necessary to preserve, without dilution, the purchase rights represented by this Option. Upon receipt of such opinion, APGC will promptly mail a copy thereof to the holder of this Option and shall make the adjustments described therein.

No Dilution or Impairment. The Company hereby acknowledges ------------------------- that the initial number of shares issuable upon exercise of the Warrant was calculated based upon 0.36% (based on the Warrant being initially exercisable for 100,000 shares, which percentage shall increase accordingly if and when the number of shares the Warrant may be exercised for is increased) of the number of shares of Common Stock and Common Stock Equivalents outstanding and the representation of the Company that the number of shares of Common Stock and Common Stock Equivalents outstanding as of the date hereof (including the Warrant Securities) was 27,937,315 shares (which number was calculated as follows: 23,778,565 shares of Common Stock outstanding, 3,858,750 shares available under the Company's existing and contemplated stock option plans, stock options, warrants and other convertible securities, and 100,000 shares issuable upon exercise of the Warrant). If for any event reason it shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented hereafter be determined by the Shares in accordance with Company that the essential intent actual number of shares of Common Stock and principles Common Stock Equivalents outstanding as of this Sectionthe Date hereof was different from the foregoing, then, in each the Company will notify the Holder(s) of such casedetermination and if the Holder(s) does not dispute the same, the Company shall forthwith reissue the Warrant with an appropriate proportional increase in the Exercise Quantity to be effective from the Date hereof. If a Holder shall dispute such determination and the parties cannot otherwise resolve the dispute promptly and in good faith, then the Company shall appoint an investment banking a firm of independent public accountants of recognized national standing, or any other financial expert that does not standing (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in which may be the Company or any regular auditors of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries), which shall give their opinion upon as to the adjustment, if any, on a basis consistent with to be made to the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the SharesExercise Quantity. Upon receipt of such opinion, the Company will shall promptly mail a copy thereof to the Holders Holder(s) of the Shares Warrant and shall make the adjustments adjustment described therein. It is the intent of the parties hereto that, after giving effect to any exercise of the Warrant, the Holder(s) of the Warrant or Warrant Securities would collectively be the owner of 0.36% (based on the Warrant being initially exercisable for 100,000 shares, which percentage shall increase accordingly if and when the number of shares the Warrant may be exercised for is increased) of the Common Stock and Common Stock Equivalents (or have the right to acquire 0.36% of the Common Stock and Common Stock Equivalents outstanding as such amount may be adjusted in the event of a cashless exercise of the Warrant according to Section 2(a)(ii) or (iii) thereof or other adjustments contemplated ---------------- ----- herein and based on the Warrant being initially exercisable for 100,000 shares, which percentage shall increase accordingly if and when the number of shares the Warrant may be exercised for is increased), except such percentage may be reduced as a consequence of an issuance of Common Stock not requiring any adjustment in the Exercise Price resulting from any Adjustment Transaction in accordance with Section 5.02 or other adjustments contemplated herein. ------------ Upon any adjustment of the Exercise Price as provided in Section 5.02, the ------------ Exercise Quantity shall be adjusted so that the New Exercise Quantity shall be equal to the product of (x) the former Exercise Quantity and (y) the following fraction: The Exercise Price in effect immediately prior to such adjustment ----------------------------------------------------------------- The Exercise Price resulting from such adjustment Exhibit B hereto sets forth the formula and an illustrative example of the --------- manner in which the adjustments contemplated herein should be applied. So long as any Warrants are outstanding, then, without the prior written consent of the Holders of outstanding Warrants evidencing a majority in number of the total number of Warrant Securities at the time purchasable upon the exercise of all then outstanding Warrants, the Company will notnot (a) merge or consolidate with or into another Person or voluntarily reorganize, by amendment of liquidate, dissolve or wind up its certificate of incorporation affairs; or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or (b) take any other voluntary action, to avoid or seek to avoid the observance or performance of any of the terms of this AgreementAgreement or the Warrant or impair the ability of the Holder(s) to realize the full intended economic value thereof, but will at all times in good faith assist in the carrying out of all such terms terms, and in of the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders Holder of the Shares under this Agreement. Without limiting the generality of the foregoing, the Company (1) will take all such action as may be necessary Warrant against dilution or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock from time to time outstanding and (2) will not take any action which results in any adjustment of the number of Shares if the total number of Shares issuable after the action, would exceed the total number of Shares or shares of Common Stock, as the case may be, then authorized by the Company's certificate of incorporation and available for the purposes of issueother impairment.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment of its certificate Certificate of incorporation Incorporation or through any consolidation, merger, reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Agreementthe Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders holder of the Shares under this AgreementWarrant against dilution. Without limiting the generality of the foregoing, the Company (1i) will not increase the par value of any shares of stock receivable on the exercise of the Warrant above the amount payable therefor on such exercise, (ii) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable non-assessable shares of Common Stock stock on the exercise of the Warrant from time to time outstanding outstanding, including by (A) preparing an Information Statement on Schedule 14C (the “Information Statement”) relating to the approval by written consent of the issuance of the Warrant Shares under this Warrant, and all other shares issuable by the Company pursuant to other instruments dated as of the date hereof, as required by Nasdaq Listing Rule 5635, (B) filing the Information Statement with the Securities and Exchange Commission (the “SEC”), (C) using its best efforts to cause the Information Statement to be cleared by the SEC as promptly as practicable and (2D) disseminating the Information Statement to the shareholders of the Company, and (iii) subject to Section 15, will not take transfer all or substantially all of its properties and assets to any action which results in other entity (corporate or otherwise), or consolidate with or merge into any adjustment of other entity or permit any such entity to consolidate with or merge with the number of Shares Company (if the total number Company is not the surviving entity), unless such other entity shall expressly assume in writing and will be bound by all the terms of Shares issuable after this Warrant and the action, would exceed the total number of Shares or shares of Common Stock, as the case may be, then authorized by the Company's certificate of incorporation and available for the purposes of issuePurchase Agreement.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue issuance or sale of securities or any other voluntary actionaction or omission, avoid or seek to avoid the observance or performance of any of the terms of this AgreementAgreement or any of the Warrants issued hereunder, but will at all times in good faith assist in the carrying out of observe and perform all such terms and in the taking of take all such action as may be necessary or appropriate in order to protect the rights of the Holders such holder of a Warrant against dilution or other impairment of the Shares under kind specified herein; PROVIDED, HOWEVER, that, subject to compliance with the applicable provisions of this Agreement, the Company shall not be prohibited by this Article 7 or by any provision of this Agreement from making decisions providing for, INTER ALIA, the merger or consolidation of the Company or the sale of its assets which transactions, in the judgment of the Company's board of directors, are in the best interests of the Company and stockholders. Without limiting the generality of the foregoing, the Company (1a) will not permit the par value of any shares of stock receivable upon the exercise of any Warrant to exceed the amount payable therefor upon such exercise, (b) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock stock upon the exercise of all of the Warrants from time to time outstanding and (2c) will not take any action which that results in any adjustment of the number shares issuable upon exercise of Shares the Warrants (or which entitles the holders of the warrants to receive Other Securities upon such exercise) if the total number of Shares shares of Common Stock (or Other Securities) issuable after the action, action upon the exercise of all of the Warrants would exceed the total number of Shares or shares of Common Stock, as the case may be, Stock (or Other Securities) then authorized by the Company's certificate of incorporation and available for the purposes purpose of issueissuance upon such exercise.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities (other than the shares of Common Stock and Preferred Stock issued on the date of the Closing under the Purchase Agreement and any securities issued upon conversion or exchange thereof) or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this AgreementWarrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders holder of the Shares under this AgreementWarrant against dilution or other impairment. Without limiting the generality of the foregoing, the Company (1a) will not permit the par value of any shares of stock receivable upon the exercise of this Warrant to exceed the amount payable therefor upon such exercise, (b) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock stock upon the exercise of all of the Warrants from time to time outstanding and outstanding, (2c) will not take any action which results in any adjustment of the number of Shares Warrant Price if the total number of Shares shares of Common Stock (or Other Securities) issuable after the action, action upon the exercise of all of the Warrants would exceed the total number of Shares or shares of Common Stock, as the case may be, Stock (or other Securities) then authorized by the Company's certificate of incorporation and available for the purposes purpose of issueissue upon such exercise and, (d) will not issue any capital stock of any class which has the right to more than one vote per share or which is preferred as to dividends or as to the dis- tribution of assets upon voluntary or involuntary dissolution, liquidation or winding-up, unless such stock is sold for a cash consideration at least equal to the amount of its preference upon voluntary or involuntary dissolution, liquidation or winding-up and the rights of the holders thereof shall be limited to a fixed percentage (not exceeding 15%) of such cash consideration in respect of participation in dividends.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment of its certificate Certificate of incorporation Incorporation or through any consolidationreorganization, merger, reorganizationrecapitalization, transfer of assets, dissolutionconsolidation, issue or sale of securities merger, share exchange, dissolution or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this AgreementWarrant, but including without limitation the adjustments required under Section 7 hereof, and will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders of the Shares under this AgreementHolder against dilution or other impairment. Without limiting the generality of the foregoingforegoing and notwithstanding any other provision of this Warrant to the contrary (including by way of implication), the Company (1a) will not increase the par value of any shares of Class B Common receivable on the exercise of this Warrant above the amount payable therefor on such exercise, (b) will take all such action as may be necessary or appropriate in order so that the Company may validly and legally issue fully paid and nonassessable shares of Class B Common on the exercise of this Warrant, (c) will not effect any stock split, stock combination, recapitalization or other change affecting any class of Common Stock from time unless such change is also made with respect to time outstanding all other classes of Common Stock, (d) will not pay any dividend or make any other distribution with respect to any class of Common Stock unless dividends are paid and distributions are made at the same rate on all classes of Common Stock (and if any such dividend is a stock dividend, such dividend shall be declared in shares of the applicable class to the holders of such class) and (2e) will not take any other action intended to treat, or having the effect of treating, any class of Common Stock in a manner which results in impairs, or is otherwise different from, any adjustment of the number of Shares if the total number of Shares issuable after the action, would exceed the total number of Shares or shares other class of Common Stock, as the case may be, then authorized by the Company's certificate of incorporation and available for the purposes of issue.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue issuance or sale of securities or any other voluntary actionaction or omission, avoid or seek to avoid the observance or performance of any of the terms of this AgreementAgreement or any of the Warrants issued hereunder, but will at all times in good faith assist in the carrying out of observe and perform all such terms and in the taking of take all such action as may be necessary or appropriate in order to protect the rights of the Holders each holder of a Warrant against dilution or other impairment of the Shares under kind specified herein PROVIDED, HOWEVER, that, subject to compliance with the applicable provisions of this Agreement, the Company shall not be prohibited by this Article 8 or by any provision of this Agreement from making decisions providing for, INTER ALIA, the merger or consolidation of the Company or the sale of its assets which transactions, in the judgment of the Company's board of directors, are in the best interests of the Company and stockholders. Without limiting the generality of the foregoing, the Company (1a) will not permit the par value of any shares of stock receivable upon the exercise of any Warrant to exceed the amount payable therefor upon such exercise, (b) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock stock upon the exercise of all of the Warrants from time to time outstanding and (2c) will not take any action which that results in any adjustment of the number shares issuable upon exercise of Shares the Warrants (or which entitles the holders of the Warrants to receive Other Securities upon such exercise) if the total number of Shares shares of Common Stock (or Other Securities) issuable after the action, action upon the exercise of all of the Warrants would exceed the total number of Shares or shares of Common Stock, as the case may be, Stock (or Other Securities) then authorized by the Company's certificate of incorporation and available for the purposes purpose of issueissuance upon such exercise.

No Dilution or Impairment. Capital and Ownership Structure. If ----------------------------------------------------------- any event shall occur as to which the provisions of this Section 4 10 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights rights (including all purchase rights) represented by the Shares Warrants in accordance with the essential intent and principles of this such Section, then, in each such case, the Company shall appoint appoint, at its own expense, an investment banking firm of recognized national standing, or any other financial expert standing that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 410, necessary to preserve, without dilution, the rights of purchase rights, represented by this Agreement and the Holders of the SharesWarrants. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders holders of the Shares Warrants and shall make the adjustments described therein. The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Agreementthe Warrants, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders holders of the Shares under this AgreementWarrants against dilution or other impairment. Without limiting the generality of the foregoing, the Company (1) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock on the exercise of the Warrants from time to time outstanding and (2) will not take any action which results in any adjustment of the number of Shares Exercise Rate if the total number of Warrant Shares issuable after such action upon the action, exercise of all of the Warrants would exceed the total number of Shares or shares of Common Stock, as the case may be, Stock then authorized by the Company's certificate of incorporation and available for the purposes of issueissue upon such exercise. A consolidation, merger, reorganization or transfer of assets involving the Company covered by Section 10(m) shall not be prohibited by or require any adjustment under this Section 11.

No Dilution or Impairment. The Company hereby acknowledges that the initial number of shares issuable upon exercise of the Warrants was calculated based upon [___%] of the number of shares of Common Stock, Class B Common Stock and Common Stock Equivalents outstanding and the representation of the Company that the number of shares of Common Stock and Common Stock Equivalents outstanding as of the Closing Date (including the Warrant Securities) was [_________________________ Million ____________ (______)] shares. If for any event reason it shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented hereafter be determined by the Shares in accordance with Company that the essential intent actual number of shares of Common Stock, Class B Common Stock and principles Common Stock Equivalents outstanding as of this Sectionthe Closing Date was different from the foregoing, then, in each the Company will notify the Holder(s) of such casedetermination and if the Holder(s) does not dispute the same, the Company shall forthwith reissue the Warrants with an appropriate proportional increase in the Exercise Quantity to be effective from the Closing Date. If a Holder shall dispute such determination and the parties cannot otherwise resolve the dispute promptly and in good faith, then the Company shall appoint an investment banking a firm of independent public accountants of recognized national standing, or any other financial expert that does not standing (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in which may be the Company or any regular auditors of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries), which shall give their opinion upon as to the adjustment, if any, on a basis consistent with to be made to the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the SharesExercise Quantity. Upon receipt of such opinion, the Company will shall promptly mail a copy thereof to the Holders Holder(s) of the Shares Warrants and shall make the adjustments adjustment described therein. It is the intent of the parties hereto that, after giving effect to any exercise of the Warrants, the Holder(s) of the Warrants or Warrant Securities would collectively be the owner of [__%] of the Common Stock and Common Stock Equivalents (or have the right to acquire [__%] of the Common Stock and Common Stock Equivalents outstanding as such amount may be adjusted in the event of a cashless exercise of the Warrants according to SECTION 2(a)(ii) or (iii) thereof or other adjustments contemplated herein), except such percentage may be reduced as a consequence of an issuance of Common Stock not requiring any adjustment in the Exercise Price resulting from any Adjustment Transaction in accordance with SECTION 5.02 or other adjustments contemplated herein. Upon any adjustment of the Exercise Price as provided in SECTION 5.02, the Exercise Quantity shall be adjusted so that the New Exercise Quantity shall be equal to the product of (x) the former Exercise Quantity and (y) the following fraction: THE EXERCISE PRICE IN EFFECT IMMEDIATELY PRIOR TO SUCH ADJUSTMENT --------------------------------------------------------------------- The Exercise Price resulting from such adjustment Exhibit B hereto sets forth the formula and an illustrative example of the manner in which the adjustments contemplated herein should be applied. So long as any Warrants are outstanding, then, without the prior written consent of the Holders of outstanding Warrants evidencing a majority in number of the total number of Warrant Securities at the time purchasable upon the exercise of all then outstanding Warrants, the Company will not: (a) amend the Certificate of Incorporation or the By-Laws of the Company (or any equivalent documents) with respect to the Company's capital stock; (b) merge or consolidate with or into another Person or voluntarily reorganize, liquidate, dissolve or wind up its affairs; (c) make any payment (in cash or property) to or enter into any other transaction with, any party to this Agreement or any stockholder or securityholder of the Company or any Affiliate thereof other than payments made, or transactions expressly contemplated by amendment of its certificate of incorporation this Agreement, the Securities Purchase Agreement or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue the Senior Debt Agreement; or sale of securities or (d) take any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this AgreementAgreement or the Warrants or impair the ability of the Holder(s) to realize the full intended economic value thereof, but will at all times in good faith assist in the carrying out of all such terms terms, and in of the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders Holder(s) of the Shares under this Agreement. Without limiting the generality of the foregoing, the Company (1) will take all such action as may be necessary Warrants against dilution or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock from time to time outstanding and (2) will not take any action which results in any adjustment of the number of Shares if the total number of Shares issuable after the action, would exceed the total number of Shares or shares of Common Stock, as the case may be, then authorized by the Company's certificate of incorporation and available for the purposes of issueother impairment.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the Shares. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this AgreementWarrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders holder of the Shares under this AgreementWarrant against dilution or other impairment. Without limiting the generality of the foregoing, the Company (1A) will not permit the par value of any shares of stock receivable upon the exercise of this Warrant to exceed the amount payable therefor upon such exercise, (B) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock stock upon the exercise of all of the Warrants from time to time outstanding and outstanding, (2C) will not take any action which results in any adjustment of the number of Shares Warrant Price if the total number of Shares shares of Common Stock (or Other Securities) issuable after the action, action upon the exercise of all of the Warrants would exceed the total number of Shares or shares of Common Stock, as the case may be, Stock (or other Securities) then authorized by the Company's certificate of incorporation and available for the purposes purpose of issueissue upon such exercise and, (D) will not issue any capital stock of any class which has the right to more than one vote per share or which is preferred as to dividends or as to the distribution of assets upon voluntary or involuntary dissolution, liquidation or winding-up, unless such stock is sold for a cash consideration at least equal to the amount of its preference upon voluntary or involuntary dissolution, liquidation or winding-up and the rights of the holders thereof shall be limited to a fixed percentage (not exceeding 15%) of such cash consideration in respect of participation in dividends.

No Dilution or Impairment. If any event shall occur as to which the provisions of this Section 4 are not strictly applicable but the failure to make any adjustment would adversely affect the Adjustment Rights represented by the Shares No Changes in accordance with the essential intent and principles of this Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in this Section 4, necessary to preserve, without dilution, the rights of the Holders of the SharesCapital Stock. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the Holders of the Shares and shall make the adjustments described therein. ------------------------------------------------------ The Company will not, by amendment of its certificate of incorporation charter or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Agreement, but the Series B Articles Supplementary, the Registration Rights Agreement or the Stockholders' Agreement. The Company will at all times in good faith assist in the carrying out of all such terms terms, and in the taking of all such action action, as may be necessary or appropriate in order to protect the rights of the Holders holders of the Shares under (as such rights are set forth in this Agreement, the Series B Articles Supplementary, the Registration Rights Agreement and the Stockholders' Agreement) against dilution or other impairment. Without limiting the generality of the foregoing, the Company (1a) will not issue any shares or class or series of equity or equity- linked security, which is senior to, or pari passu with, the Series B Preferred as to ---------- dividend payments or amounts payable in the event of liquidation or winding up of the Company, (b) will not enter into any agreement or instrument which would restrict or otherwise materially adversely affect the ability of the Company to perform its obligations under this Agreement, the Stockholders' Agreement, the Registration Rights Agreement or the Series B Articles Supplementary, (c) will not amend its charter or by-laws in any manner which would impair or reduce the rights of the Preferred Stock, including, without limitation, an amendment which would alter or change the powers, privileges or preferences of the holders of the Series B Preferred (including, without limitation, changing the Series B Articles Supplementary after any Shares have been called for redemption), (d) except as otherwise provided in the Series B Articles Supplementary will not redeem, repurchase or otherwise acquire, either directly or indirectly through its Subsidiaries, any shares of capital stock of the Company or any of its Subsidiaries or any other rights or options to subscribe for or purchase any capital stock of the Company or any other securities convertible into or exchangeable for capital stock of the Company, (e) will not permit the par value or the determined or stated value of any shares of Common Stock receivable upon the conversion of the Shares to exceed the amount payable therefor upon such conversion, (f) will take all such action as may be necessary or appropriate in order that the Company may at all times validly and legally issue duly authorized, fully paid and nonassessable shares of the Common Stock free from all taxes, Liens and charges with respect to the issue thereof, upon the conversion of the Shares from time to time outstanding and outstanding, (2g) will not take any action which results in any adjustment of the number of Shares current conversion price under the Series B Articles Supplementary if the total number of Shares shares of the Common Stock (or other securities) issuable after the action, action upon the conversion of all of the then outstanding Shares would exceed the total number of Shares or shares of Common Stock, as the case may be, Stock (or other securities) then authorized by the Company's certificate of incorporation charter and available for the purposes purpose of issueissuance upon such conversion or exercise, (h) will not have any authorized Common Stock (and will not issue any Common Stock) other than its existing authorized Common Stock, and (i) will not amend its charter to change any terms of its Common Stock.