Common use of Adjustment for Common Stock Issue Clause in Contracts

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - E' = E x O + M -------- A where: E' = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price per share on the date of issuance of such additional shares. A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1) any of the transactions described in subsections (b) and (c) of this Section 7, (2) the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, Common Stock, (3) Common Stock issued to the Company's employees under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to shareholders of any person which merges into the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, (6) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting, (7) Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm of the National Association of Securities Dealers, Inc., or (8) Common Stock issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issued.

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - --- E' = E x O + M -------- --------- A where: E' = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price per share on the date of issuance of such additional shares. A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1) any of the transactions described in subsections (b) and (c) of this Section 7, (2) the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, Common Stock, (3) Common Stock issued to the Company's employees under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to shareholders of any person which merges into the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, (6) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting, (7) Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm of the National Association of Securities Dealers, Inc., or (8) Common Stock issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issued.

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price per share on the date the Company fixes the offering price of such additional shares, the Exercise Price number of Shares held by a Holder of Shares upon exercise in full of such Holder's Adjustment Right shall be adjusted determined in accordance with the following formula: N' = N x A ----- O + P - E' = E x O + M -------- A where: EN' = the adjusted Exercise Pricenumber of Shares which would be held by such Holder upon exercise in full of such Holder's Adjustment Right. E N = the then current Exercise Pricenumber of Shares held by such Holder. O = the number of shares of Common Stock outstanding on a fully diluted basis immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price per share of Common Stock on the date of issuance sale of such additional shares. A = the number of shares of Common Stock outstanding on a fully diluted basis immediately after prior to the issuance of such additional shares, plus the number of shares issued in connection with such issuance. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection . (da) does not apply to: (1) any of the transactions described in subsections (b) and (c) of this Section 7, (2) the exercise of Warrants, or the conversion or exchange of options, warrants or other securities convertible into, or exchangeable or exercisable for, for Common Stock, (3) Common Stock issued to the Company's employees under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (52) Common Stock issued to shareholders of any person which merges into the Company Company, or with a subsidiary of the Company, in proportion to their stock holdings connection with the acquisition of such person immediately prior to such merger, upon such mergeror otherwise issued in consideration of the Company's or any of its subsidiaries' acquisition of another person or business, (63) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting, (74) Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm of to the National Association of Securities Dealers, Inc., orHolders, (8) 5) Common Stock issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to employee stock purchase programs meeting the instrument under which requirements of ss. 423 of the preferred Internal Revenue Code of 1986, as amended, and (6) Common Stock issued to all holders of Common Stock in connection with any stock was issuedsplit, stock dividend or other recapitalization of the Company.

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price Closing Price per share on the date the Company fixes the offering price of such additional shares, the Exercise Price number of shares of Common Stock issuable upon exercise of each Warrant shall be adjusted in accordance with the formula: P - E' N’ = E N x A O + P/M -------- A where: E' N’ = the adjusted Exercise Pricenumber of shares of Common Stock issuable upon exercise of each Warrant. E N = the then current Exercise Pricenumber of shares of Common Stock issuable upon exercise of each Warrant. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price Closing Price per share on the date of issuance of such additional shares. A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1) any of the transactions described in subsections (b) and (c) of this Section 711, (2) the exercise of Warrants, or the conversion or exchange of other securities convertible intoor exchangeable for Common Stock, or exchangeable the issuance of Common Stock upon the exercise of rights or exercisable for, warrants issued to the holders of Common Stock, (3) Common Stock (and options exercisable therefor) issued to the Company's employees ’s employees, officers, directors, consultants or advisors (whether or not still in such capacity on the date of exercise) under bona fide employee benefit plans or stock option plans adopted by the Board of Directors of the Company and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to shareholders of any person which merges into the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, (6) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwritingfor cash, (75) Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm to non-affiliates of the National Association Company, including without limitation the issuance of Securities Dealers, Inc., or (8) Common Stock issued equity as a dividend on any preferred stock in accordance with consideration or partial consideration for acquisitions from persons that are not affiliates of the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issuedCompany.

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - E' = E x O + M -------- A where: E' = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price per share on the date of issuance of such additional shares. . A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1) any of the transactions described in subsections (b) and (c) of this Section 710, (2) the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, for Common Stock, (3) Common Stock issued to the Company's employees under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d) (but only to the extent that the aggregate number of shares excluded hereby and issued after the date of this Warrant Agreement shall not exceed 5% of the Common Stock outstanding at the time of the adoption of each such plan, exclusive of antidilution adjustments thereunder), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to (A) shareholders of any person which merges into the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such mergermerger or (B) the seller of all or substantially all the assets of another business upon the closing of such acquisition, (6) Common Stock issued in a bona fide public offering pursuant to a firm commitment or best efforts underwriting (provided, however, in the case of a best efforts underwriting,, it is conducted through a broker-dealer which is a member firm of the National Association of Securities Dealers, Inc.), or (7) Common Stock issued in a bona fide private placement to, or through a placement agent which is, is a member firm of the National Association of Securities Dealers, Inc.Inc. (except to the extent that any discount from the current market price attributable to restrictions on transferability of the Common Stock, or (8) Common Stock issued as determined in good faith by the Board of Directors and described in a dividend on any preferred stock in accordance Board resolution which shall be filed with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issuedHolder, shall exceed 20%).

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock (including treasury shares) for a consideration per share less than the current market price Specified Value per share on the date the Company fixes the offering price of such additional shares, the Exercise Price Warrant Number shall be adjusted in accordance with the following formula: P - E' = E x O + M -------- A where: EW' = the adjusted Exercise PriceWarrant Number. E W = the then current Exercise PriceWarrant Number immediately prior to any such issuance. O = the number of shares of Common Stock outstanding immediately prior to the issuance of such additional sharesshares of Common Stock. P = the aggregate consideration received for the issuance of such additional sharesshares of Common Stock. M = the current market price Specified Value per share of Common Stock on the date of issuance of such additional shares. A = the number of shares of Common Stock outstanding immediately after the issuance of such additional sharesshares of Common Stock. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1) to any of the transactions described in subsections subsection (b) and (ca) of this Section 7,8 or the issuances described below: (2i) The issuance of Common Stock upon the conversion, exercise of Warrants, or the conversion or exchange of other securities convertible intoany Convertible Securities (as defined below), including the Warrants, outstanding on the date hereof or exchangeable or exercisable for, Common Stock,for which an adjustment has been made pursuant to this Section 8; or (3ii) (A) The grant of rights to purchase shares of Common Stock issued and the issuance of such shares of Common Stock upon exercise of such rights, to directors, members of management or employees of the Company's Company and its subsidiaries pursuant to management incentive plans, employee incentive plans, stock option and stock purchase plans or agreements adopted by the board of directors of the Company and (B) following the acquisition by the Company of any of the rights or shares referred to in clause (A) the reissuance of any such acquired rights and the issuance of shares of Common Stock upon exercise thereof and (C) the grant of any rights under a phantom stock plan, stock appreciation rights plan or other deferred compensation plan to officers, directors or employees under bona fide employee benefit plans of the Company and its subsidiaries adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to shareholders of any person which merges into the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, (6) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting, (7) Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm of the National Association of Securities Dealers, Inc., or (8) Common Stock issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issuedCompany.

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - E' = E x O + M -------- ( P) A where: E' = the adjusted Exercise Price. E = the then current Exercise PricePrice immediately prior to the adjustment. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price per share on the date of issuance of such additional shares. A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1i) any of the transactions described in subsections (b) and (c) of this Section 710, (2ii) the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, for Common StockStock and that are outstanding on the date hereof, (3iii) shares of Common Stock issued to the Company's directors, employees and consultants under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders stockholders of Common Stock the Company when required by law, if such Common Stock would otherwise be covered by this subsection (d) (but only to the extent that the aggregate number of shares excluded hereby and issued after the date hereof shall not exceed 5% of the Common Stock outstanding on a fully diluted basis at the time of the adoption of any such plan, exclusive of anti-dilution adjustments thereunder), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5iv) Common Stock issued to shareholders of any person which merges into the Company Company's management pursuant to the Option Grant (as defined in proportion to their stock holdings of such person immediately prior to such mergerthe Subscription Agreement), upon such merger,or (6v) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting, (7) Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm of the National Association of Securities Dealers, Inc., or (8) Common Stock issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issued.

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - E' = E x O + M -------- ------- A where: E' = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price per share on the date of issuance of such additional shares. . A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1) any of the transactions described in subsections (b) and (c) of this Section 710, (2) the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, for Common Stock, (3) Common Stock issued to the Company's employees under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d) (but only to the extent that the aggregate number of shares excluded hereby and issued after the date of this Warrant Agreement shall not exceed 5% of the Common Stock outstanding at the time of the adoption of each such plan, exclusive of antidilution adjustments thereunder), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to shareholders of any person which merges into the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, (6) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting,underwriting or (7) Common Stock issued in a bona fide private placement to, or through a placement agent which is, is a member firm of the National Association of Securities Dealers, Inc.Inc. (except to the extent that any discount from the current market price attributable to restrictions on transferability of the Common Stock, or (8) Common Stock issued as determined in good faith by the Board of Directors and described in a dividend on any preferred stock in accordance Board resolution which shall be filed with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issuedTrustee, shall exceed 20%).

Adjustment for Common Stock Issue. If the Company DIMAC Holdings issues shares of Common Stock for a consideration per share less than the current market price Specified Value per share on the date the Company DIMAC Holdings fixes the offering price of such additional shares, the Exercise Price Warrant Number shall be adjusted in accordance with the following formula: W'=~W `TIMES` {A OVER {O `+ `{P - E' = E x O + M -------- A OVER M}}} where: EW' = the adjusted Exercise PriceWarrant Number. E W = the then current Exercise PriceWarrant Number immediately prior to any such issuance. O = the number of shares of Common Stock outstanding immediately prior to the issuance of such additional sharesshares of Common Stock. P = the aggregate consideration received for the issuance of such additional sharesshares of Common Stock. M = the current market price Specified Value per share of Common Stock on the date of issuance of such additional shares. A = the number of shares of Common Stock outstanding immediately after the issuance of such additional sharesshares of Common Stock. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1) to any of the transactions described in subsections subsection (b) and (ca) of this Section 7,or the issuances described below: (2i) The issuance of Common Stock upon the conversion, exercise of Warrants, or the conversion or exchange of other securities convertible intoany Convertible Securities (as defined below), including the Warrants, outstanding on the date hereof or exchangeable or exercisable forfor which an adjustment has been made pursuant to this Section ; or (A) The grant of rights to purchase shares of Common Stock representing, in the aggregate (taking into account all such grants since October 22, 1998), up to 5% of the outstanding shares of Common Stock, (3) , and the issuance of such shares of Common Stock issued upon exercise of such rights, to the Company's employees under bona fide employee benefit directors or members of management of DIMAC Holdings and its subsidiaries pursuant to management incentive plans, stock option and stock purchase plans or agreements adopted by the Board board of Directors directors of DIMAC Holdings and approved (B) following the acquisition by DIMAC Holdings of any of the holders rights or shares referred to in clause (A) the reissuance of any such acquired rights and the issuance of shares of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to shareholders of any person which merges into the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, (6) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting, (7) Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm of the National Association of Securities Dealers, Inc., or (8) Common Stock issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issuedthereof.

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - E' = E x O + M -------- ------- A where: E' = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price per share on the date of issuance of such additional shares. A = the number of shares outstanding immediately after the issuance of such additional additiona| shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1) : any of the transactions described in subsections (b) and (c) of this Section 7, (2) , the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, Common Stock, (3) , Common Stock issued to the Company's employees under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d), (4) , Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5) , Common Stock issued to shareholders of any person which merges into the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, (6) , Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting, (7) , Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm of the National Association of Securities Dealers, Inc., or (8) or Common Stock issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issued.

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price Current Market Price per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - E' = O+ --- M E'= E x O + M -------- A where: E' = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price Current Market Price per share of Common Stock on the date of issuance of such additional shares. A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment pursuant to this Section 8(d) shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1) any of the transactions described in subsections (a), (b) and (c) of this Section 78, (2) the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, for Common Stock, the issuance of which caused an adjustment to be made under Section 8(e), (3) Common Stock issued to the Company's employees employees, directors or consultants (or employees, directors or consultants of its Affiliates) under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d) (but only to the extent that the aggregate number of shares excluded hereby and issued after the date of this Warrant Agreement, together with the number of shares issuable upon conversion of the securities described in clause (e)(2) below, shall not exceed 10% of the Common Stock outstanding at the time of the adoption of each such plan, exclusive of anti-dilution adjustments thereunder), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to shareholders stockholders of any person Person which merges into with the Company, or with a subsidiary of the Company (in proportion to their such stockholders' stock holdings of such person Person immediately prior to such merger, upon such merger), provided that if such Person is an Affiliate of the Company, the Board of Directors shall have obtained a fairness opinion from a nationally recognized investment banking, appraisal or valuation firm, which is not an Affiliate of the Company, stating that the consideration received in such merger is fair to the Company from a financial point of view, (5) the issuance of shares of Common Stock pursuant to rights, options or warrants which were originally issued in a Non-Affiliate Sale (as defined below) together with one or more other securities as part of a unit at a price per unit, (6) shares of Common Stock issued upon exercise of any option granted or warrant issued prior to the date of this Warrant Agreement and, with respect to any option granted or warrant issued after the date of this Warrant Agreement at an exercise price not less than Current Market Price per share on the date of such grant or issuance, shares of Common Stock issued upon exercise thereof, or (7) shares of Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting, (7) Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm ; provided that the issue price of such shares -------- is at least equal to 80% of the National Association then Current Market Price per share of Securities Dealers, Inc., or (8) Common Stock issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issuedStock.

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - E' = E x O + M -------- ------ A where: E' = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price per share on the date of issuance of such additional shares. A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1) any of the transactions described in subsections (b) and (c) of this Section 7, (2) the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, Common Stock, (3) Common Stock issued to the Company's employees under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to shareholders of any person which merges into the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, (6) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting, (7) Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm of the National Association of Securities Dealers, Inc., or (8) Common Stock issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issued.

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price Market Price per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - E' = E x [(O + M -------- A (P / M)) / A] where: E' = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price Market Price per share of Common Stock on the date of issuance of such additional shares. A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment pursuant to this Section 9(d) shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1) any of the transactions described in subsections (a), (b) and (c) of this Section 79, (2) the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, for Common Stock, the issuance of which caused an adjustment to be made under Section 9(e), (3) Common Stock issued to the Company's employees employees, directors or consultants (or employees, directors or consultants of its Affiliates) under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d) (but only to the extent that the aggregate number of shares excluded hereby and issued after the date of this Warrant, together with the number of shares issuable upon conversion of the securities described in clause (e)(2) below, shall not exceed 10% of the Common Stock outstanding at the time of the adoption of each such plan, exclusive of anti-dilution adjustments thereunder), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to shareholders stockholders of any person Person which merges into with the Company, or with a subsidiary of the Company (in proportion to their such stockholders' stock holdings of such person Person immediately prior to such merger, upon such merger), provided that if such Person is an Affiliate of the Company, the Board of Directors shall have obtained a fairness opinion from a nationally recognized investment banking, appraisal or valuation firm, which is not an Affiliate of the Company, stating that the consideration received in such merger is fair to the Company from a financial point of view, (5) the issuance of shares of Common Stock pursuant to rights, options or warrants which were originally issued in a Non- Affiliate Sale (as defined below) together with one or more other securities as part of a unit at a price per unit, (6) shares of Common Stock issued upon exercise of any option granted or warrant issued prior to the date of this Warrant and, with respect to any option granted or warrant issued after the date of this Warrant at an exercise price not less than Market Price per share on the date of such grant or issuance, shares of Common Stock issued upon exercise thereof, or (7) shares of Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting, (7) Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm ; provided that the issue price of such shares is at least equal to 80% of the National Association then Market Price per share of Securities Dealers, Inc., or (8) Common Stock issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issuedStock.

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - --- E' = E x O + M -------- --------- A where: E' = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price per share on the date of issuance of such additional shares. . A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1) any of the transactions described in subsections (a), (b) and or (c) of this Section 710, (2) the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, for Common Stock, (3) Common Stock issued to the Company's employees under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d) (but only to the extent that the aggregate number of shares excluded hereby and issued after the date of this Warrant Agreement shall not exceed 5% of the Common Stock outstanding at the time of the adoption of each such plan, exclusive of antidilution adjustments thereunder), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to shareholders of any person which merges into the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, (6) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting,underwriting or (7) Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm (except to the extent that any discount from the current market price attributable to restrictions on transferability of the National Association Common Stock, as determined in good faith by the Board of Securities Dealers, Inc., or (8) Common Stock issued as Directors and described in a dividend on any preferred stock in accordance Board resolution which shall be filed with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issuedTrustee, shall exceed 25%).

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price Current Market Price per share on the date the Company fixes the offering price of such additional shares, the Exercise Conversion Price shall be adjusted in accordance with the formula: P - E' = E x O + M -------- ----- A where: E' = the adjusted Exercise Conversion Price. E = the then current Exercise Conversion Price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price Current Market Price per share on the date of issuance of such additional shares. A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1) any of the transactions described in subsections (a), (b) and (c) of this Section 71.4, (2) the exercise conversion of Warrantswarrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, for Common Stock, (3) Common Stock issued to the Company's employees employees, consultants or advisors under bona fide employee benefit plans adopted by the Board Praegitzer Industries, Inc. 19▇▇ ▇▇▇▇▇ ▇ncentive Plan and the Praegitzer Industries, Inc. Em▇▇▇▇▇▇ ▇▇▇ck Purchase Plan as in effect on the date of Directors and approved by the holders of Common Stock when required by lawAgreement, if such Common Stock would otherwise be covered by this subsection (d), (4) Common Stock issued upon the exercise conversion of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to shareholders of any person which Person that is not affiliated with the Company and that merges into the Company in proportion to their stock holdings of such person Person immediately prior to such merger, upon such merger, (6) Common Stock issued to Persons in a bona fide public offering pursuant to a firm commitment underwriting,underwriting or (7) Common Stock issued to Persons who are not affiliates of the Company in a bona fide private placement to, or through a placement agent which is, that is a member firm of the National Association NASD (except to the extent that any discount from the Current Market Price attributable to restrictions on transferability of Securities Dealersthe Common Stock, Inc., or (8) Common Stock issued as a dividend on any preferred stock determined in accordance with good faith by the stated terms Board of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock Directors pursuant to the instrument under Section 1.4(n) and described in a Board resolution which the preferred stock was issuedshall be delivered to each holder of any Convertible Amount, shall exceed 15%).

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price Fair Value per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - E' = E x O + M -------- A ------------------- where: E' = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price Fair Value per share on the date of issuance of such additional shares. A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1) any of the transactions described in subsections (b) and (c) of this Section 711, (2) the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, for Common StockStock the issuance of which caused an adjustment to be made under Section 11(e), (3) Common Stock issued to the Company's employees under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d) (but only to the extent that the aggregate number of shares excluded hereby and issued after the date of this Warrant Agreement shall not exceed 5% of the Common Stock outstanding at the time of the adoption of each such plan, exclusive of anti-dilution adjustments thereunder), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to shareholders of any person which merges into the Company Company, or with a subsidiary of the Company, in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, (6) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting, (7) Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm provided that if such person is an Affiliate of the National Association Company, the Board of Securities DealersDirectors shall have obtained a fairness opinion from a nationally recognized investment banking, Inc.appraisal or valuation firm, which is not an Affiliate of the Company, stating that the consideration received in such merger is fair to the Company from a financial point of view, or (8) 5) the issuance of shares of Common Stock issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under rights, options or warrants which the preferred stock was issuedwere originally issued in a Non-Affiliate Sale (as defined below) together with one or more other securities as part of a unit at a price per unit.

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - _ E' = E x O + M -------- ______ A where: E' = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price per share on the date of issuance of such additional shares. A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1) any of the transactions described in subsections (b) and (c) of this Section 7, (2) the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, Common Stock, (3) Common Stock issued to the Company's employees under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to shareholders of any person which merges into the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, (6) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting, (7) Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm of the National Association of Securities Dealers, Inc., or (8) Common Stock issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issued.

Adjustment for Common Stock Issue. If the Company Weekly Reader issues shares of Common Stock (other than pursuant to any Common Stock-related employee benefit plan or agreement of Weekly Reader approved by its Board of Directors) for a consideration per share less than the current market price Fair Value per share on the date the Company Weekly Reader fixes the offering price of such additional shares, the Exercise Price Exchange Ratio shall be adjusted in accordance with so that the formula: P - E' = E x O + M -------- A where: E' = holder of any Unit Common Stock thereafter shall be entitled to the adjusted Exercise Price. E = the then current Exercise Price. O = the aggregate number of shares outstanding immediately prior of Common Stock of Weekly Reader which will provide such holder the same economic interest in Weekly Reader as such holder would have had, had such Common Stock been issued at a price equal to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price Fair Value per share on the date of issuance of such additional shares. A = the number of shares outstanding immediately after the issuance of such additional sharesshare. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. Notwithstanding the foregoing, no adjustment to the Exchange Ratio shall be made as a result of the issuance of shares of Weekly Reader Common Stock in bona fide public offerings that are underwritten or offerings in which a private placement agent is retained by Weekly Reader. This subsection (d) does not apply to: (1) any of the transactions described in subsections (a), (b) and (c) of this Section 79, (2) the exercise of Warrantswarrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, Common Stockfor common stock the issuance of which caused an adjustment to be made under Section 9(e), (3) Common Stock common stock issued to the CompanyWeekly Reader's employees (or employees of its subsidiaries) under bona fide employee benefit compensation plans or agreements with employees adopted by the its Board of Directors and approved by the holders of Common Stock when required by lawDirectors, if such Common Stock common stock would otherwise be covered by this subsection (d), (4) Common Stock issued upon the exercise common stock of rights or warrants issued to the holders of Common Stock, (5) Common Stock Weekly Reader issued to shareholders of any person which merges into Weekly Reader, as applicable, or with a subsidiary of the Company or Weekly Reader in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, (6) Common Stock issued , provided that if such person is an Affiliate of Weekly Reader the Board of Directors of Weekly Reader shall have obtained a fairness opinion from a nationally recognized investment banking, appraisal or valuation firm, which is not an Affiliate of Weekly Reader, stating that the consideration received in such merger is fair to Weekly Reader from a bona fide public offering pursuant to a firm commitment underwriting, (7) Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm financial point of the National Association of Securities Dealers, Inc.view, or (8) Common Stock issued as a dividend on any preferred 5) the issuance of shares of common stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock Weekly Reader pursuant to the instrument under rights, options or warrants which the preferred stock was issuedwere originally issued in a Non-Affiliate Sale (as defined below) together with one or more other securities as part of a unit at a price per unit.

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price Fair Value per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - ---- E' = E x O + M -------- ----------- A where: E' = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price Fair Value per share on the date of issuance of such additional shares. A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1) any of the transactions described in subsections (a), (b) and (c) of this Section 78, (2) the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, for Common StockStock the issuance of which caused an adjustment to be made under Section 8(e), (3) Common Stock issued to the Company's employees employees, directors or consultants (or any of the foregoing of its subsidiaries) under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d) (but only to the extent that the aggregate number of shares excluded hereby and issued after the date of this Warrant Agreement shall not, together with the shares of Common Stock underlying the options described in the last paragraph of subsection 8(b) hereof, exceed 10% of the Common Stock outstanding at the time of the adoption of each such plan, exclusive of anti-dilution adjustments thereunder), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to shareholders of any person Person which merges into the Company Company, or with a subsidiary of the Company, in proportion to their stock holdings of such person Person immediately prior to such merger, upon such merger,, provided that if such Person is an Affiliate of the Company, the Board of Directors shall have obtained a fairness opinion from a nationally recognized investment banking, appraisal or valuation firm, which is not an Affiliate of the Company, stating that the consideration received in such merger is fair to the Company from a financial point of view, or (5) the issuance of shares of Common Stock pursuant to rights, options or warrants which were originally issued in a Non-Affiliate Sale (as defined below) together with one or more other securities as part of a unit at a price per unit; including without limitation, the warrants issued in connection with the offering by the Company and O'Su▇▇▇▇▇▇ ▇▇▇ustries, Inc. of 100,000 units, each consisting of $1,000 principal amount of maturity of O'Su▇▇▇▇▇▇ ▇▇▇ustries, Inc. 13 3/8% Senior Subordinated Notes due 2009, one warrant to purchase shares of the Company's Common Stock and one warrant to purchase shares of the Company's Series B junior preferred stock. (6) the issuance of shares of Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting, (7) Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm issuable upon exercise of the National Association of Securities Dealers, Inc., or (8) Common Stock warrants issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which Warrant Agreement, dated November 30, 1999, between the preferred stock was issuedCompany and Norwest Bank Minnesota, National Association, as warrant agent.

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the following formula: P - -- E' = E x O 0 + M -------- ----- A where: E' = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price per share on the date of issuance the Company fixes the offering price of such additional shares. A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1i) any of the transactions described in subsections (a), (b) and (c) of this Section 76, (2ii) the conversion, exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, for Common Stock, (3iii) Common Stock issued to the Company's employees under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d), (4) Common Stock issued issuable upon the exercise of rights or warrants issued to the holders of Common Stock, (5iv) Common Stock issued to shareholders of any person Person which merges into the Company in proportion to their stock holdings of such person Person immediately prior to such merger, upon such merger, (6v) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting,, or (7vi) Common Stock issued in a bona fide private placement to, or through a placement agent which is, is a member firm of the National Association of Securities Dealers, Inc., or Inc. (8) Common Stock issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant except to the instrument under which extent that any discount from the preferred stock was issuedcurrent market price attributable to restrictions on transferability of the Common Stock, as determined in good faith by the Board of Directors and described in a Board resolution, shall exceed 20%).

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - E' = E x O + M -------- ----------- A where: E' = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price per share on the date of issuance of such additional shares. A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1) any of the transactions described in subsections (b) and (c) of this Section 7, (2) the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, Common Stock, (3) Common Stock issued to the Company's employees under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to shareholders of any person which merges into the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, (6) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting, (7) Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm of the National Association of Securities Dealers, Inc., or (8) Common Stock issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issued.

Adjustment for Common Stock Issue. If the Company Holdings issues shares of Common Stock for a consideration per share less than the current market price Current Market Price per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - Holdings E' = E x O + N ------------ N x P O + ----- M -------- A where: E' = the adjusted Exercise PriceRate. E = the then current Exercise PriceRate. O = the number of shares of Common Stock outstanding immediately prior to the issuance of such additional sharesshares (assuming the conversion, exercise or exchange of all Rights and convertible securities into shares of Common Stock). N = the number of additional shares of Common Stock issued. P = the aggregate consideration received per share for the issuance of such additional sharesshares of Common Stock. M = the current market price Current Market Price per share of Common Stock on the date of issuance of such additional shares. A = the number shares of shares outstanding immediately after the issuance of such additional sharesCommon Stock. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection CLAUSE (dD) does not apply to: (1) any of the transactions described in subsections CLAUSES (bA), (B), (C) and or (cE) of this Section 7SECTION 10 (including transactions referred to in such clauses as not being subject thereto), (2) the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, for Common Stock, (3) Common Stock issued to the Company's employees under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (54) Common Stock issued to shareholders stockholders of any person which that is not affiliated with Holdings and that merges into the Company Holdings, or with a subsidiary of Holdings, in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, (65) Common Stock issued to persons in a bona fide public offering pursuant to a firm commitment underwriting,, or (76) Common Stock issued to persons who are not affiliates of Holdings in a bona fide private placement to, or through a placement agent which is, that is a member firm of the National Association NASD (except to the extent that any discount from the Current Market Price attributable to restrictions on transferability of Securities Dealersthe Common Stock, Inc., or (8) Common Stock issued as a dividend on any preferred stock determined in accordance with good faith by the stated terms Board of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock Directors pursuant to the instrument under which the preferred stock was issuedCLAUSE (N) of SECTION 10 and described in a Board resolution, shall exceed 5%).

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price Fair Value per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - --- E' = E x O + M -------- ------------ A where: E' = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price Fair Value per share on the date of issuance of such additional shares. A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1) any of the transactions described in subsections (a), (b) and (c) of this Section 78, (2) the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, for Common StockStock the issuance of which caused an adjustment to be made under Section 8(e), (3) Common Stock issued to the Company's employees (or employees of its subsidiaries) under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d) (but only to the extent that the aggregate number of shares excluded hereby and issued after the date of this Warrant Agreement shall not exceed 5% of the Common Stock outstanding at the time of the adoption of each such plan, exclusive of anti-dilution adjustments thereunder), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to shareholders of any person which merges into the Company Company, or with a subsidiary of the Company, in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, (6) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting, (7) Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm provided that if such person is an Affiliate of the National Association Company, the Board of Securities DealersDirectors shall have obtained a fairness opinion from a nationally recognized investment banking, Inc.appraisal or valuation firm, which is not an Affiliate of the Company, stating that the consideration received in such merger is fair to the Company from a financial point of view, or (8) 5) the issuance of shares of Common Stock issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under rights, options or warrants which the preferred stock was issuedwere originally issued in a Non-Affiliate Sale (as defined below) together with one or more other securities as part of a unit at a price per unit.

Adjustment for Common Stock Issue. If the Company issues shares --------------------------------- of Common Stock for a consideration per share less than the current market price per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - E' = E x O + M -------- ----- A where: E' = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price per share on the date of issuance of such additional shares. . A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment pursuant to this subsection (d) shall be made successively whenever any such issuance is made, made and shall become effective immediately after such issuance. This subsection (d) does not apply to: to (1i) any of the transactions described in subsections (a), (b) and (c) of this Section 7, 8, (2ii) the exercise of Warrants, the Warrants or the conversion or exchange of other securities convertible into, into or exercisable or exchangeable or exercisable for, for Common Stock, , (3) Common Stock issued to the Company's employees under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d), (4iii) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, , (5iv) Common Stock issued to employees of or consultants providing bona fide technical or professional (other than financial) services to the Company or any of its subsidiaries under bona fide employee benefit or incentive plans adopted by the board of directors of the Company and approved by the holders of Common Stock when required by applicable state law, (v) Common Stock issued to shareholders of any person which merges into the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, , (6vi) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting, underwriting or (7vii) Common Stock issued in a bona fide private placement to, or through a placement agent which is, is a member firm of the National Association of Securities Dealers, Inc., or Inc. (8) Common Stock issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant except to the instrument under which extent that any discount from the preferred stock was issuedcurrent market price attributable to restrictions on transferability of the Common Stock, as determined in good faith by the Board of Directors and described in a Board resolution, shall exceed 20%).

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price Fair Value per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: O + P - --- M E' = E x O + M -------- ------ A where: E' = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price Fair Value per share on the date of issuance of such additional shares. A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1) any of the transactions described in subsections (a), (b) and (c) of this Section 78, (2) the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, for Common StockStock the issuance of which caused an adjustment to be made under Section 8(e), (3) Common Stock issued to the Company's employees employees, directors or consultants (or employees, directors or consultants of its Affiliates) under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d) (but only to the extent that the aggregate number of shares excluded hereby and issued after the date of this Warrant Agreement, together with the number of shares issuable upon conversion of the securities described in clause (e)(2) below, shall not exceed 5% of the Common Stock outstanding at the time of the adoption of each such plan, exclusive of anti-dilution adjustments thereunder), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to shareholders of any person Person which merges into with the Company Company, or with a subsidiary of the Company, in proportion to their stock holdings of such person Person immediately prior to such merger, upon such merger, provided that if such Person is an Affiliate of the Company, the Board of Directors shall have obtained a fairness opinion from a nationally recognized investment banking, appraisal or valuation firm, which is not an Affiliate of the Company, stating that the consideration received in such merger is fair to the Company from a financial point of view, (5) the issuance of shares of Common Stock pursuant to rights, options or warrants which were originally issued in a Non-Affiliate Sale (as defined below) together with one or more other securities as part of a unit at a price per unit, or (6) shares of Common Stock issued in a bona fide public offering pursuant upon exercise of any option granted or warrant issued prior to a firm commitment underwriting, (7) the date of this Warrant Agreement and, with respect to any option granted or warrant issued after the date of this Warrant Agreement at an exercise price not less than Fair Value per share on the date of such grant or issuance, shares of Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm of the National Association of Securities Dealers, Inc., or (8) Common Stock issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issuedupon exercise thereof.

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share which is less than the current market price per share on the date the Company fixes the offering price of such additional shares, shares the Exercise Price conversion price shall be adjusted in accordance with the formula: O + P - EM ------- C' = E C x O + M -------- A where: EC' = the adjusted Exercise Priceconversion price. E C = the then current Exercise Priceconversion price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price per share on the date of issuance of such additional shares. A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) Section does not apply to: to (1i) any of the transactions described in subsections Sections 10.06, 10.07, 10.08 and 10.10, (b) and (c) of this Section 7, (2ii) the exercise conversion of WarrantsSecurities, or the conversion conversion, exchange or exchange exercise of options or other securities convertible into, into or exchangeable or exercisable for, for Common Stock, , (3iii) Common Stock issued pursuant to the Company's employees under any bona fide director, management, employee and consultant stock option and benefit plans and agreements adopted by the Board of Directors either now existing or hereinafter in effect, (but only to the extent that either (x) the eligibility for persons entitled to participate in any such plan is broad based or (y) the aggregate number of shares excluded under this clause (y) and approved by issued after the holders date of this Indenture shall not exceed 10% of the Common Stock when required by lawoutstanding at the time of the adoption of each such plan and agreement, if such Common Stock would otherwise be covered by this subsection exclusive of antidilution adjustments thereunder), (d), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5iv) Common Stock issued to shareholders of acquire, or in the acquisition of, all or any person which merges into portion of, or to invest in, a business, in an arm's-length transaction between the Company in proportion to their stock holdings and a third party which is not an Affiliate of the Company, whether such person immediately prior to such acquisition or investment shall be effected by purchase of assets, exchange of securities, merger, upon such merger, consolidation or otherwise, or (6v) Common Stock issued in a bona fide public offering or 144A offering pursuant to a firm commitment underwriting, (7) Common Stock issued in a bona fide private placement to, underwriting or through a placement agent which is, a member firm of sales at the National Association of Securities Dealers, Inc., or (8) Common Stock issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock market pursuant to the instrument under which the preferred a continuous offering stock was issuedprogram.

Adjustment for Common Stock Issue. (i) If the Company issues shares of Common Stock for a consideration per share less than the current market price Fair Market Value per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - E' = E x O + P/M -------- ------------ A where: E' = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price Fair Market Value per share on the date of issuance of such additional shares. A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. . (ii) This subsection (dSection 8(d) does shall not apply to: (1) any of the transactions described in subsections (a), (b) and (c) of this Section 78, (2) the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, Common Stock, (3) the conversion, exchange or exercise of other securities convertible into or exchangeable or exercisable for Common Stock issued the issuance of which convertible securities requires an adjustment to be made under Section 8(e), (4) the Company's employees issuance of Common Stock (and options exercisable therefore) to employees, officers or directors of the Company or its subsidiaries under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection Section 8(d) (d), (4) but only to the extent that the aggregate number of shares excluded hereby and issued after the date of this Warrant Agreement shall not exceed 25% of the Common Stock issued upon outstanding at the exercise time of rights or warrants issued to the holders adoption of Common Stockthe most recent of such plans, exclusive of anti-dilution adjustments thereunder), (5) the issuance of Common Stock issued to shareholders or equity holders of any person Person which merges into the Company Company, or with a subsidiary of the Company, in proportion to their stock or equity holdings of such person Person immediately prior to such merger, upon such merger, provided that if such Person is an Affiliate of the Company, the Board of Directors, including a majority of the independent directors, shall have determined that the consideration received in such merger is fair to the Company from a financial point of view; provided further that if the Board of Directors shall not consist of at least one independent director who was not appointed, nominated or designated to the Board of Directors through any right of appointment, nomination or designation by an Affiliate of the Company, the Company shall have obtained a fairness opinion from a nationally recognized investment banking, appraisal or valuation firm which is not an Affiliate of the Company to the effect that the consideration received in such merger is fair to the Company from a financial point of view, (6) the issuance of securities upon the conversion, exchange or exercise of other securities, warrants, options or similar rights if the conversion, exchange or exercise price is not less than the Fair Market Value per share of Common Stock at the time the security, warrant, option or right so converted, exchanged or exercised was issued in a bona fide public offering pursuant to a firm commitment underwriting,or granted, or (7) the issuance of shares of Common Stock pursuant to rights, options or warrants which were originally issued in a bona fide private placement to, Non-Affiliate Sale (as defined below) together with one or through more other securities as part of a placement agent which is, unit at a member firm of the National Association of Securities Dealers, Inc., or (8) Common Stock issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issuedprice per unit.

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price Fair Value per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - ----- E' = E x O + M -------- --------------- A where: E' = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price Fair Value per share on the date of issuance of such additional shares. A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1) any of the transactions described in subsections (a), (b) and (c) of this Section 78, (2) the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, for Common StockStock the issuance of which caused an adjustment to be made under Section 8(e), (3) Common Stock issued to the Company's employees employees, directors or consultants (or any of the foregoing of its subsidiaries) under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d) (but only to the extent that the aggregate number of shares excluded hereby and issued after the date of this Warrant Agreement shall not exceed 10% of the Common Stock outstanding at the time of the adoption of each such plan, exclusive of anti-dilution adjustments thereunder), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to shareholders of any person which merges into the Company Company, or with a subsidiary of the Company, in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, provided that if such person is an Affiliate of the Company, the Board of Directors shall have obtained a fairness opinion from a nationally recognized investment banking, appraisal or valuation firm, which is not an Affiliate of the Company, stating that the consideration received in such merger is fair to the Company from a financial point of view, (5) the issuance of shares of Common Stock pursuant to rights, options or warrants which were originally issued in a Non-Affiliate Sale (as defined below) together with one or more other securities as part of a unit at a price per unit, or (6) the issuance of shares of Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting, (7) Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm issuable upon exercise of the National Association of Securities Dealers, Inc., or (8) Common Stock warrants issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which Securities Purchase Agreement, dated November 30, 1999, between the preferred stock was issued.Company and Bruckmann, Ross▇▇, ▇▇▇▇▇▇▇▇ & Co. II, L.P.

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - --- E' = E x O + M -------- ------------ A where: E' = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price per share on the date of issuance of such additional shares. A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1) : any of the transactions described in subsections (b) and (c) of this Section 7, (2) , the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, Common Stock, (3) , Common Stock issued to the Company's employees under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d), (4) , Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5) , Common Stock issued to shareholders of any person which merges into the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, (6) , Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting, (7) , Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm of the National Association of Securities Dealers, Inc., or (8) or Common Stock issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issued.

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - E' = E x O + M -------- --------- A where: E' = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price per share on the date of issuance of such additional shares. A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1) any of the transactions described in subsections (b) and (c) of this Section 7, (2) the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, Common Stock, (3) Common Stock issued to the Company's employees under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to shareholders of any person which merges into the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, (6) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting, (7) Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm of the National Association of Securities Dealers, Inc., or (8) Common Stock issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issued.

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price Current Market Price per share on the date the Company fixes the offering price of such additional shares, the Exercise Price number of Warrant Shares issuable upon exercise or exchange of this Warrant shall be adjusted in accordance with the formula: P - EN' = E N x A ----- O + P --- M -------- A where: EN' = the adjusted Exercise Pricenumber of Warrant Shares issuable upon exercise or exchange of this Warrant. E N = the then current Exercise Pricenumber of Warrant Shares issuable upon exercise or exchange of this Warrant. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price Current Market Price per share on the date of issuance sale of such additional shares. . A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. If the Company shall fix a record date for the issuance of rights, options or warrants to the holders of its Common Stock or other securities entitling such holders to subscribe for or purchase for a period expiring within 60 days of such record date shares of Common Stock (or securities convertible into shares of Common Stock) at a price per share of Common Stock (or having a conversion price per share of Common Stock, if a security convertible into shares of Common Stock) less than the current market price per share of Common Stock on such record date, then the maximum number of shares of Common Stock issuable upon exercise of such rights, options or warrants (or conversion of such convertible securities) shall be deemed to have been issued and outstanding as of such record date and the number of Warrant Shares issuable upon exercise or exchange of this Warrant shall be adjusted pursuant to this paragraph (c) as though such maximum number of shares of Common Stock had been so issued for an aggregate consideration payable by the holders of such rights, options, warrants or convertible securities prior to their receipt of such shares of Common Stock. Such adjustment shall be made successively whenever such record date is fixed; and in the event that such rights, options or warrants are not so issued or expire unexercised, or in the event of a change in the number of shares of Common Stock to which the holders of such rights, options or warrants are entitled (other than pursuant to adjustment provisions therein comparable to those contained in this Section 6), then the number of Warrant Shares issuable upon exercise or exchange of this Warrant shall again be adjusted to be the number of Warrant Shares which would then be in effect if such record date had not been fixed, in the former event, or the number of Warrant Shares which would then be in effect if such holders had initially been entitled to such changed number of shares of Common Stock, in the latter event. If the Company shall issue rights, options or warrants entitling the holders thereof to subscribe for or purchase Common Stock (or securities convertible into shares of Common Stock) or shall issue convertible securities, and the price per share of Common Stock of such rights, options, warrants or convertible securities (including, in the case of rights, options or warrants, the price at which they may be exercised) is less than the current market price per share of Common Stock, then the maximum number of shares of Common Stock issuable upon exercise of such rights, options or warrants or upon conversion of such convertible securities shall be deemed to have been issued and outstanding as of the date of such sale or issuance, and the number of Warrant Shares issuable upon exercise or exchange of this Warrant shall be adjusted pursuant to this paragraph (c) as though such maximum number of shares of Common Stock had been so issued for an aggregate consideration equal to the aggregate consideration paid for such rights, options, warrants or convertible securities and the aggregate consideration payable by the holders of such rights, options, warrants or convertible securities prior to their receipt of such shares of Common Stock. Such adjustment shall be made successively whenever such rights, options, warrants or convertible securities are issued; and in the event that such rights, options or warrants expire unexercised, or in the event of a change in the number of shares of Common Stock to which the holders of such rights, options, warrants or convertible securities are entitled (other than pursuant to adjustment provisions therein comparable to those contained in this Section 6), then the number of Warrant Shares issuable upon exercise or exchange of this Warrant shall again be adjusted to be the number of Warrant Shares which would then be in effect if such rights, options, warrants or convertible securities had not been issued, in the former event, or the number of Warrant Shares which would then be in effect if such holders had initially been entitled to such changed number of shares of Common Stock, in the latter event. No adjustment of the number of Warrant Shares issuable upon exercise or exchange of this Warrant shall be made pursuant to this paragraph to the extent that the number of Warrant Shares shall have been adjusted pursuant to the preceding paragraph upon the setting of any record date relating to such rights, options, warrants or convertible securities and such adjustment fully reflects the number of shares of Common Stock to which the holders of such rights, options, warrants or convertible securities are entitled and the price payable therefor. This subsection (dc) does not apply to: (1) any of the transactions described in subsections subsection (b) and (c) of this Section 7,6 or (2) the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, Common Stockthis Warrant, (3) Common Stock issued to the Company's employees under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to shareholders of any person which merges into the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, (6) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting, (7) Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm of the National Association of Securities Dealers, Inc., or (8) Common Stock issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issued.

Adjustment for Common Stock Issue. If the Company Holdings issues shares of Common Stock for a consideration per share less than the current market price Current Market Price per share on the date the Company Holdings fixes the offering price of such additional shares, the Exercise Price Rate shall be adjusted in accordance with the formula: P - E' = E x O + N ---------- N x P O + ----- M -------- A where: E' = the adjusted Exercise PriceRate. E = the then current Exercise PriceRate. O = the number of shares of Common Stock outstanding immediately prior to the issuance of such additional sharesshares (assuming the conversion, exercise or exchange of all Rights and convertible securities into shares of Common Stock). N = the number of additional shares of Common Stock issued. P = the aggregate consideration received per share for the issuance of such additional sharesshares of Common Stock. M = the current market price Current Market Price per share of Common Stock on the date of issuance of such additional shares. A = the number shares of shares outstanding immediately after the issuance of such additional sharesCommon Stock. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection CLAUSE (dD) does not apply to: (1) any of the transactions described in subsections CLAUSES (a), (b) and ), (c) or (e) of this Section 7SECTION 10 (including transactions referred to in such clauses as not being subject thereto), (2) the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, for Common Stock, (3) Common Stock issued to the Company's employees under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (54) Common Stock issued to shareholders stockholders of any person which that is not affiliated with Holdings and that merges into the Company Holdings, or with a subsidiary of Holdings, in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, (65) Common Stock issued to persons in a bona fide public offering pursuant to a firm commitment underwriting,, or (76) Common Stock issued to persons who are not affiliates of Holdings in a bona fide private placement to, or through a placement agent which is, that is a member firm of the National Association NASD (except to the extent that any discount from the Current Market Price attributable to restrictions on transferability of Securities Dealersthe Common Stock, Inc., or (8) Common Stock issued as a dividend on any preferred stock determined in accordance with good faith by the stated terms Board of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock Directors pursuant to the instrument under which the preferred stock was issuedCLAUSE (N) of SECTION 10 and described in a Board resolution, shall exceed 5%).

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - E' = E x O + P ___ M -------- ________ A where: E' = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price per share on the date of issuance of such additional shares. . A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1) any of the transactions described in subsections (a), (b) and (c) of this Section 710, (2) the exercise of Warrants, or upon the issuance of any Common Stock which is issued pursuant to the exercise of any options, warrants or other subscription or purchase rights or pursuant to the exercise of any conversion or exchange rights in any convertible securities described in subsection (e) of this Section 10, if an adjustment to the Exercise Price shall previously have been made hereunder upon the issuance of such options, warrants or other securities rights or upon the issuance of such convertible into, or exchangeable or exercisable for, Common Stock,securities. (3) Common Stock issued to the Company's employees employees, consultants or advisors under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d) (but only to the extent that the aggregate number of shares excluded hereby and issued after the date of this Warrant Agreement shall not exceed 5% of the Common Stock outstanding on a fully diluted basis at the time of the adoption of any such plan, exclusive of anti-dilution adjustments thereunder and exclusive of the Warrants and Warrant Shares contemplated hereunder), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to shareholders of any person which merges into the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, provided the Board of Directors determines such merger is on fair and reasonable terms to the Company, (65) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting, (6) Common Stock issued upon the exercise of rights or warrants issued to holders of Common Stock to the extent an adjustment was made under subsection (b) of this Section 10, and (7) Common Stock issued to Persons who are not Affiliates of the Company in a bona fide private placement to, or through a placement agent which is, that is a member firm of the National Association of Securities Dealers, Inc., or NASD (8) Common Stock issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant except to the instrument under which extent that any discount from the preferred stock was issuedcurrent market price attributable to restrictions on trans- ferability of the Common Stock, as determined in good faith by the Board of Directors, shall exceed 15%).

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - E' = E x O + M -------- ----- A where: E' = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price per share on the date of issuance of such additional shares. A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1) any of the transactions described in subsections (b) and (c) of this Section 7, (2) the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, Common Stock, (3) Common Stock issued to the Company's employees under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to shareholders of any person which merges into the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, (6) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting, (7) Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm of the National Association of Securities Dealers, Inc., or (8) Common Stock issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issued.

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price Fair Market Value per share of Common Stock on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - -- E' = E x O + M -------- ----- A where: E' = E'= the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares of Common Stock outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price Fair Market Value per share of Common Stock on the date of issuance of such additional shares. A = the number of shares of Common Stock outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1) any of the transactions described in subsections (a), (b) and (c) of this Section 713, (2) the exercise of WarrantsWarrants or other warrants outstanding on the date of this Agreement, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, for Common Stock, (3) Common Stock issued to the Company's employees employees, consultants or directors under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock stock when required by law, if such Common Stock common stock would otherwise be covered by this subsection (d) (but only to the extent that the aggregate number of shares excluded hereby and issued after the date of this Agreement shall not exceed 10% of the Common Stock outstanding at the time of issuance), (4) Common Stock issued issuable upon the exercise of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to shareholders of any person which merges into the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, (6) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting, (7) Common Stock issued in a bona fide private placement to, or through a placement agent which is, is a member firm of the National Association of Securities Dealers, Inc.Inc. to Persons that are not Affiliates (as defined in the Indenture) of the Company (except to the extent that any discount from the current market price attributable to restrictions on transferability of the Common Stock, as determined in good faith by the Board of Directors and described in a Board resolution which shall be filed with the Warrant Agent, shall exceed 20%), or (8) Common Stock issued as a dividend on any preferred stock to Affiliates of the Company simultaneously with, and resulting in accordance with at least the stated terms same net proceeds per share of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant Common Stock to the instrument under which the preferred stock was issuedCompany as, an issuance referred to in paragraphs (6) or (7) of this Section 13(d).

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price Current Market Price per share on the date the Company fixes the offering price of such additional shares, the Exercise Price Rate shall be adjusted in accordance with the formula: P - 0 + N E' ’ = E x O 0 + N x P M -------- A where: E' ’ = the adjusted Exercise PriceRate. E = the then current Exercise PriceRate. O = the number of shares of Common Stock outstanding immediately prior to the issuance of such additional shares. N = the number of additional shares of Common Stock issued. P = the aggregate consideration received per share for the issuance of such additional sharesshares of Common Stock. M = the current market price Current Market Price per share of Common Stock on the date of issuance of such additional shares. A = the number shares of shares outstanding immediately after the issuance of such additional sharesCommon Stock. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1i) any of the transactions described in subsections (b) and (c) of this Section 7,10; (2ii) the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, for Common Stock,; (3iii) Common Stock upon the exercise of rights or warrants issued to the holders of Common Stock; (iv) Common Stock issued to shareholders of any person that is not affiliated with the Company and that merges into the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such merger; (v) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting; (vi) Common Stock issued to persons who are not affiliates of the Company in bona fide private placement through a placement agent which is a member firm of the NASD (except to the extent that any discount from the Current Market Price attributable to restrictions on transferability of the Common Stock, as determined in good faith by the Board of Directors pursuant to Section 10(n) and described in a Board resolution, shall exceed 5%); or (vii) Common Stock issued to the Company's employees ’s employees, consultants and directors under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d), ) (4) but only to the extent that the aggregate number of Rights excluded hereby and issued after the date of this Warrant Agreement shall not exceed the right to subscribe for more than 10% of the Common Stock issued upon outstanding on the exercise of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to shareholders of any person which merges into the Company in proportion to their stock holdings of such person date immediately prior to such merger, upon such merger, (6) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting, (7) Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm after consummation of the National Association of Securities Dealers, Inc., or (8) Common Stock issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issuedPrivate Offering).

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the lower of the Exercise Price or current market price per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - E' = E x O + M -------- A where: E' ’ = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price per share on the date of issuance of such additional shares. A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (db) does not apply to: (1) any of the transactions described in subsections (a), (b) and or (c) of this Section 713, (2) the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, for Common Stock, (3) Common Stock issued to the Company's ’s employees under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (db) (but only to the extent that the aggregate number of shares excluded hereby and issued after the date of this Warrant Agreement shall not exceed 5% of the Common Stock outstanding at the time of the adoption of each such plan, exclusive of antidilution adjustments thereunder), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to shareholders of any person which merges into the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, (6) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting,underwriting or (7) Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm (except to the extent that any discount from the current market price attributable to restrictions on transferability of the National Association Common Stock, as determined in good faith by the Board of Securities Dealers, Inc., or (8) Common Stock issued as Directors and described in a dividend on any preferred stock in accordance Board resolution which shall be filed with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issuedTrustee, shall exceed 25%).

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - E' = E x O + M -------- ----- A where: E' = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price per share on the date of issuance of such additional shares. . A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1) any of the transactions described in subsections (b) and (c) of this Section 710, (2) the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, for Common Stock, (3) Common Stock issued to the Company's employees under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d) (but only to the extent that the aggregate number of shares excluded hereby and issued after the date of this Warrant Agreement shall not exceed 5% of the Common Stock outstanding at the time of the adoption of each such plan, exclusive of antidilution adjustments thereunder), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to shareholders of any person which merges into the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, (6) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting,underwriting or (7) Common Stock issued in a bona fide private placement to, or through a placement agent which is, is a member firm of the National Association of Securities Dealers, Inc.Inc. (except to the extent that any discount from the current market price attributable to restrictions on transferability of the Common Stock, or (8) Common Stock issued as determined in good faith by the Board of Directors and described in a dividend on any preferred stock in accordance Board resolution which shall be filed with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issuedTrustee, shall exceed 20%).

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - E' = E x O + ( P) M -------- A where: E' = the adjusted Exercise Price. E = the then current Exercise PricePrice immediately prior to the adjustment. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price per share on the date of issuance of such additional shares. A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1i) any of the transactions described in subsections (b) and (c) of this Section 710, (2ii) the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, for Common StockStock and that are outstanding on the date hereof, (3iii) shares of Common Stock issued to the Company's directors, employees and consultants under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders stockholders of Common Stock the Company when required by law, if such Common Stock would otherwise be covered by this subsection (d) (but only to the extent that the aggregate number of shares excluded hereby and issued after the date hereof shall not exceed 5% of the Common Stock outstanding on a fully diluted basis at the time of the adoption of any such plan, exclusive of anti-dilution adjustments thereunder), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5iv) Common Stock issued to shareholders of any person which merges into the Company Company's management pursuant to the Option Grant (as defined in proportion to their stock holdings of such person immediately prior to such mergerthe Subscription Agreement), upon such merger,or (6v) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting, (7) Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm of the National Association of Securities Dealers, Inc., or (8) Common Stock issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issued.

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price Exercise Price per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - E' ’ = E x O + M -------- A where: E' ’ = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price per share on the date of issuance of such additional shares. A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1) any of the transactions described in subsections (a), (b) and or (c) of this Section 7SECTION 12, (2) the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, for Common Stock, (3) Common Stock issued to the Company's ’s employees under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d) (but only to the extent that the aggregate number of shares excluded hereby are issued pursuant to new plans (or amendments to existing plans) authorized after the date of this Warrant Agreement), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to shareholders of any person which merges into the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, (6) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting,underwriting or (7) Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm (except to the extent that any discount from the current market price attributable to restrictions on transferability of the National Association Common Stock, as determined in good faith by the Board of Securities Dealers, Inc., or (8) Common Stock issued as Directors and described in a dividend on any preferred stock in accordance Board resolution which shall be filed with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issuedTrustee, shall exceed 25%).

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock (including treasury shares) for a consideration per share less than the current market price Specified Value per share on the date the Company fixes the offering price of such additional shares, the Exercise Price Warrant Number shall be adjusted in accordance with the following formula: P - EW' = E x W {A [O + M -------- A (P M)]} where: EW' = the adjusted Exercise PriceWarrant Number. E W = the then current Exercise PriceWarrant Number immediately prior to any such issuance. O = the number of shares of Common Stock outstanding immediately prior to the issuance of such additional sharesshares of Common Stock. P = the aggregate consideration received for the issuance of such additional sharesshares of Common Stock. M = the current market price Specified Value per share of Common Stock on the date of issuance of such additional shares. A = the number of shares of Common Stock outstanding immediately after the issuance of such additional sharesshares of Common Stock. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1) to any of the transactions described in subsections subsection (b) and (ca) of this Section 7,8 or the issuances described below: (2i) The issuance of Common Stock upon the conversion, exercise of Warrants, or the conversion or exchange of other securities convertible intoany Convertible Securities (as defined below), including the Warrants, outstanding on the date hereof or exchangeable or exercisable for, Common Stock,for which an adjustment has been made pursuant to this Section 8; or (3A) The grant of rights to purchase shares of Common Stock issued and the issuance of such shares of Common Stock upon exercise of such rights, to directors, members of management or employees of the Company's employees under bona fide Company and its subsidiaries pursuant to management incentive plans, employee benefit incentive plans, stock option and stock purchase plans or agreements adopted by the Board board of Directors directors of the Company and approved (B) following the acquisition by the holders Company of any of the rights or shares referred to in clause (A) the reissuance of any such acquired rights and the issuance of shares of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection upon exercise thereof and (d), (4C) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to shareholders grant of any person which merges into rights under a phantom stock plan, stock appreciation rights plan or other deferred compensation plan to officers, directors or employees of the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, (6) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting, (7) Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm of the National Association of Securities Dealers, Inc., or (8) Common Stock issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issuedits subsidiaries.

Adjustment for Common Stock Issue. If the Company issues shares of --------------------------------- Common Stock for a consideration per share less than the current market price Current Market Price per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - E' = E x O + M -------- ------- A where: E' = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price Current Market Price per share on the date of issuance of such additional shares. A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1) any of the transactions described in subsections (a), (b) and (c) of this Section 710, (2) the exercise of Warrantswarrants or options, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, for Common Stock, (3) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (4) Common Stock issued to the Company's employees under bona fide employee employment benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock rights would otherwise be covered by this subsection (d), ) (4) but only to the extent that the aggregate shares of Common Stock excluded hereby and issued upon after the exercise date of rights or warrants issued to this Agreement shall not exceed more than 10% of the holders Common Stock outstanding on the date of Common Stockthis Agreement), (5) Common Stock issued to shareholders of any person that is not affiliated with the Company which merges into the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, (6) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting,, or (7) Common Stock issued to persons who are not affiliates of the Company in a bona fide private placement to, or through a placement agent which is, is a member firm of the National Association of Securities Dealers, Inc.Inc. (except to the extent that any discount from the Current Market Price attributable to restrictions on transferability of the Common Stock, or (8) Common Stock issued as a dividend on any preferred stock determined in accordance with good faith by the stated terms Board of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock Directors pursuant to the instrument under which the preferred stock was issuedSection 10(n) and described in a Board resolution, shall exceed 15%).

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price Fair Value per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - E' ’ = E x O + M -------- A where: E' ’ = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price Fair Value per share on the date of issuance of such additional shares. . A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1i) any of the transactions described in subsections (a), (b) and (c) of this Section 76.01, (2ii) the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, for Common Stock, (3) Common Stock issued to , which are the Company's employees under bona fide employee benefit plans adopted by the Board subject of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (dSection 6.01(e), (4iii) Common Stock issued upon the exercise shares of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to shareholders of any person which merges into the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, (6) Common Stock issued in a bona fide public offering pursuant to merger of the Company with a firm commitment underwriting,Person who is not an Affiliate of the Company; (7iv) Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm shares of the National Association of Securities Dealers, Inc., or (8) Common Stock issued as consideration in a dividend on merger of the Company with any preferred stock of its Affiliates, if the Company obtains an opinion from a nationally recognized investment banking, appraisal or valuation firm stating that the consideration received in accordance such merger is fair to the Company; provided, however, that such opinion shall not be required in the case of a merger of iPayment Investors, L.P. with and into the stated terms Company where the partners in iPayment Investors, L.P. receive in consideration only the shares of Common Stock owned by iPayment Investors, L.P. prior to such preferred stock and transaction; and (v) shares of Common Stock issued pursuant to, or upon the exercise of awards granted pursuant to, employee benefit plans of the Company in lieu of cash dividends otherwise payable on such preferred stock an aggregate amount not to exceed, together with Common Stock issuable pursuant to Section 6.01(e)(iii), 20% of the instrument under which outstanding shares of Common Stock of the preferred stock was issuedCompany on the date of this Agreement on a fully-diluted basis after giving effect to the issuance of the Warrants, subject to any applicable anti-dilution adjustment.

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - --- E' = E x O + M -------- ----------- A where: E' = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price per share on the date of issuance of such additional shares. . A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection . (d) does not apply to: (1i) any of the transactions described in subsections (bSections 11(b) and (c) of this Section 7,); (2ii) the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, for Common Stock,; (3iii) Common Stock issued to the Company's employees under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection Section 11(d) (dbut only to the extent that the aggregate number of shares excluded hereby and issued after the date of this Warrant Agreement shall not exceed 5% of the Common Stock outstanding at the time of the adoption of each such plan, exclusive of antidilution adjustments thereunder),; (4iv) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock,; (5v) Common Stock issued to shareholders stockholders of any person which merges into the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such merger,; (6vi) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting,; or (7vii) Common Stock issued in a bona fide private placement to, or through a placement agent which is, is a member firm of the National Association of Securities Dealers, Inc.Inc. ("NASD") (except to the extent that any discount from the current market price attributable to restrictions on transferability of the Common Stock, or as determined in good faith by the Board of Directors of the Company (8) Common Stock issued as the "BOARD") and described in a dividend on any preferred stock in accordance Board resolution which shall be filed with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issuedTrustee, shall exceed 20%).

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price Current Market Price per share on the date the Company fixes the offering price of issues such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - E' = E x O + M -------- ----- A where: E' = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares of Common Stock outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price Current Market Price per share on the date of issuance of such additional shares. A = the number of shares of Common Stock outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (dSubsection 10(d) does not apply to: to (1i) any of the transactions transaction or issuance described in subsections Subsections 10(a), (b) and ), (c) of this Section 7, or (2e); (ii) the exercise of Warrants, conversion of the Company's 7% Cumulative Convertible Exchangeable Preferred Stock or Cumulative Convertible Participating Preferred Stock or the conversion conversion, exchange or exchange of exercise of, other securities convertible intowhose issuance was the subject of an adjustment pursuant to Subsections 10(b), (c) or exchangeable or exercisable for, Common Stock, (3e); (iii) Common Stock issued to the Company's employees under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection Subsection 10(d), but only to the extent that (d), x) such shares are issued pursuant to employee stock options with an exercise price not less than the Current Market Price on the date of issuance of such option or (4y) the aggregate number of shares otherwise excluded hereby (together with the aggregate number of shares issuable upon conversion, exchange or exercise of the securities excluded by clause (iii) of Subsection 10(e) below) and issued after the date hereof do not exceed 5% of the Common Stock issued upon outstanding at the exercise time of rights or warrants issued to the holders of Common Stock, any such issuance; (5iv) Common Stock issued to shareholders acquire, or in the acquisition of, all or any portion of any person which merges into a business as a going concern, in an arm's-length transaction between the Company in proportion to their stock holdings and an unaffiliated third party, whether such acquisition shall be effected by purchase of such person immediately prior to such assets, exchange of securities, merger, upon such merger, consolidation or otherwise, or (6v) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting, (7) Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm of the National Association of Securities Dealers, Inc., or (8) Common Stock issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issued.

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - -- E' = E x O + M -------- --------- A where: E' = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price per share on the date of issuance of such additional shares. . A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1) any of the transactions described in subsections (b) and (c) of this Section 710, (2) the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, for Common Stock, (3) Common Stock issued to the Company's employees under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d) (but only to the extent that the aggregate number of shares excluded hereby and issued after the date of this Warrant Agreement shall not exceed 5% of the Common Stock outstanding at the time of the adoption of each such plan, exclusive of antidilution adjustments thereunder), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to shareholders of any person which merges into the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, (6) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting,underwriting or (7) Common Stock issued in a bona fide private placement to, or through a placement agent which is, is a member firm of the National Association of Securities Dealers, Inc.Inc. (except to the extent that any discount from the current market price attributable to restrictions on transferability of the Common Stock, or (8) Common Stock issued as determined in good faith by the Board of Directors and described in a dividend on any preferred stock in accordance Board resolution which shall be filed with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issuedTrustee, shall exceed 20%).

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price per share on the date the Company fixes the offering price of such additional shares, the Exercise Price number of Shares held by a Holder of Shares upon exercise in full of such Holder's Adjustment Right shall be adjusted determined in accordance with the following formula: N' = N x A ----- O + P - E' = E x O + M -------- A where: EN' = the adjusted Exercise Pricenumber of Shares which would be held by such Holder upon exercise in full of such Holder's Adjustment Right. E N = the then current Exercise Pricenumber of Shares held by such Holder. O = the number of shares of Common Stock outstanding on a fully diluted basis immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price per share of Common Stock on the date of issuance sale of such additional shares. A = the number of shares of Common Stock outstanding on a fully diluted basis immediately after prior to the issuance of such additional shares, plus the number of shares issued in connection with such issuance. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (da) does not apply to: (1) any of the transactions described in subsections (b) and (c) of this Section 7, (2) the exercise of Warrants, or the conversion or exchange of options, warrants or other securities convertible into, or exchangeable or exercisable for, for Common Stock, (3) Common Stock issued to the Company's employees under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (52) Common Stock issued to shareholders of any person which merges into the Company Company, or with a subsidiary of the Company, in proportion to their stock holdings connection with the acquisition of such person immediately prior to such merger, upon such mergeror otherwise issued in consideration of the Company's or any of its subsidiaries' acquisition of another person or business, (63) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting, (74) Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm of to the National Association of Securities Dealers, Inc., orHolders, (8) 5) Common Stock issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to employee stock purchase programs meeting the instrument under which requirements of (S) 423 of the preferred Internal Revenue Code of 1986, as amended, and (6) Common Stock issued to all holders of Common Stock in connection with any stock was issuedsplit, stock dividend or other recapitalization of the Company.

Adjustment for Common Stock Issue. If the Company issues --------------------------------- shares of Common Stock for a consideration per share less than the current market price per share of Common Stock on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the following formula: P - --- E' = E x O + M -------- ------------ A where: E' = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares of Common Stock outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price per share of Common Stock on the date of issuance of such additional shares. A = the number of shares of Common Stock outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. Upon calculation of the adjusted Exercise Price, each Warrant outstanding prior to the making of the adjustment in the Exercise Price shall thereafter evidence the right to receive upon payment of the adjusted Exercise Price that number of shares of Common Stock (calculated to the nearest hundredth) as calculated pursuant to subsection (r) of this Section 13. This subsection (d) does not apply to: (1i) any of the transactions described in subsections (a), (b) and (c) of this Section 7,13; (2ii) the exercise of WarrantsWarrants or other warrants outstanding on the date of this Agreement, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, for Common Stock,; (3iii) up to 2,307,972 shares of Common Stock issued to the Company's employees under bona fide employee benefit employees, consultants or directors pursuant to stock option plans adopted by or stock ownership plans so long as the Board of Directors and approved by the holders of Common Stock when required by law, if price at which such Common Stock would otherwise be covered by this subsection (d),shares are issued is not less than $1.45; (4iv) Common Stock issued issuable upon the exercise of rights or warrants issued to the holders of Common Stock,; (5) Common Stock issued to shareholders of any person which merges into the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, (6v) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting,; (7vi) Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm upon conversion of the National Association Series A Preferred Stock, par value $0.01 per share, of Securities Dealersthe Company in accordance with the Certificate of Designation with respect thereto, Inc.Common Stock issued upon conversion of the Series B Preferred Stock, orpar value $0.01 per share, of the Company in accordance with the Certificate of Designation with respect thereto, and Common Stock issued upon conversion of the Series C Preferred Stock, par value $0.01 per share, of the Company in accordance with the Certificate of Designation with respect thereto, in each case, as such Certificate of Designation is in effect on the date hereof; (8) vii) Common Stock or securities convertible into or exchangeable for Common Stock issued as a dividend on dividends or interest in respect of any shares of preferred stock of the Company existing on the date hereof or in accordance with respect of the stated terms Notes; and (viii) Common Stock issued upon conversion of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issuedCompany's 9% Convertible Notes due 2006.

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock (including treasury shares) for a consideration per share less than the current market price Specified Value per share on the date the Company fixes the offering price of such additional shares, the Exercise Price Warrant Number shall be adjusted in accordance with the following formula: P - E' = E x O + M -------- A where: E' W’ = the adjusted Exercise PriceWarrant Number. E W = the then current Exercise PriceWarrant Number immediately prior to any such issuance. O = the number of shares of Common Stock outstanding immediately prior to the issuance of such additional sharesshares of Common Stock. P = the aggregate consideration received for the issuance of such additional sharesshares of Common Stock. M = the current market price Specified Value per share of Common Stock on the date of issuance of such additional shares. A = the number of shares of Common Stock outstanding immediately after the issuance of such additional sharesshares of Common Stock. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1) to any of the transactions described in subsections subsection (b) and (ca) of this Section 7,8 or the issuances described below: (2i) The issuance of Common Stock upon the conversion, exercise of Warrants, or the conversion or exchange of other securities convertible intoany Convertible Securities (as defined below), including the Warrants, outstanding on the date hereof or exchangeable or exercisable for, Common Stock,for which an adjustment has been made pursuant to this Section 8; or (3ii) (A) The grant of rights to purchase shares of Common Stock issued and the issuance of such shares of Common Stock upon exercise of such rights, to directors, members of management or employees of the Company's Company and its subsidiaries pursuant to management incentive plans, employee incentive plans, stock option and stock purchase plans or agreements adopted by the board of directors of the Company and (B) following the acquisition by the Company of any of the rights or shares referred to in clause (A) the reissuance of any such acquired rights and the issuance of shares of Common Stock upon exercise thereof and (C) the grant of any rights under a phantom stock plan, stock appreciation rights plan or other deferred compensation plan to officers, directors or employees under bona fide employee benefit plans of the Company and its subsidiaries adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to shareholders of any person which merges into the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, (6) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting, (7) Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm of the National Association of Securities Dealers, Inc., or (8) Common Stock issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issuedCompany.

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price Fair Value per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - E' = E x O + M -------- ----------- A where: E' = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price Fair Value per share on the date of issuance of such additional shares. A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1) any of the transactions described in subsections (b) and (c) of this Section 711, (2) the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, for Common Stock, (3) Common Stock issued to the Company's employees under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d) (but only to the extent that the aggregate number of shares excluded hereby and issued after the date of this Warrant Agreement shall not exceed 5% of the Common Stock outstanding at the time of the adoption of each such plan, exclusive of antidilution adjustments thereunder), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to shareholders of any person which merges into the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such merger,, or (6) the issuance of shares of Common Stock pursuant to rights, options or warrants which were originally issued in a bona fide public offering pursuant to Non-Affiliate Sale (as defined below) together with one or more other securities as part of a firm commitment underwriting, (7) Common Stock issued in unit at a bona fide private placement to, or through a placement agent which is, a member firm of the National Association of Securities Dealers, Inc., or (8) Common Stock issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issuedprice per unit.

Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the current market price Fair Value per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: P - O + --- M E' = E x O + M -------- ------- A where: E' = the adjusted Exercise Price. E = the then current Exercise Price. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the current market price Fair Value per share on the date of issuance of such additional shares. A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (1) any of the transactions described in subsections (a), (b) and (c) of this Section 78, (2) the exercise of Warrants, or the conversion or exchange of other securities convertible into, or exchangeable or exercisable for, for Common StockStock the issuance of which caused an adjustment to be made under Section 8(e), (3) Common Stock issued to the Company's employees employees, directors or consultants (or employees, directors or consultants of its Affiliates) under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this subsection (d) (but only to the extent that the aggregate number of shares excluded hereby and issued after the date of this Warrant Agreement, together with the number of shares issuable upon conversion of the securities described in clause (e)(2) below, shall not exceed 5% of the Common Stock outstanding at the time of the adoption of each such plan, exclusive of anti-dilution adjustments thereunder), (4) Common Stock issued upon the exercise of rights or warrants issued to the holders of Common Stock, (5) Common Stock issued to shareholders of any person which merges into with the Company Company, or with a subsidiary of the Company, in proportion to their stock holdings of such person immediately prior to such merger, upon such merger, provided that if such person is an Affiliate of the Company, the Board of Directors shall have obtained a fairness opinion from a nationally recognized investment banking, appraisal or valuation firm, which is not an Affiliate of the Company, stating that the consideration received in such merger is fair to the Company from a financial point of view, (5) the issuance of shares of Common Stock pursuant to rights, options or warrants which were originally issued in a Non-Affiliate Sale (as defined below) together with one or more other securities as part of a unit at a price per unit, (6) Common Stock issued upon the exercise of the convertible securities described in a bona fide public offering pursuant to a firm commitment underwriting,the last paragraph of clause (e) below, or (7) Common Stock issued in a bona fide private placement to, or through a placement agent which is, a member firm upon the conversion of the National Association of Securities Dealers, Inc., or (8) Common Company's Series A Preferred Stock issued as a dividend on any preferred stock in accordance with the stated terms of such preferred stock and in lieu of cash dividends otherwise payable on such preferred stock pursuant to the instrument under which the preferred stock was issuedSeries A-1 Preferred Stock.