Common use of Warrants and Options Clause in Contracts

Warrants and Options. If at any time or from time to time the Company shall take a record of the holders of its Common Stock for the purpose of entitling them to receive a distribution of, or shall in any manner (whether directly, by assumption in a merger in which the Company is the surviving corporation and in which the shareholders of the Company immediately prior to the merger continue to own more than 50% of the Outstanding Common Stock immediately after the merger and for a period of 180 days thereafter, or otherwise) issue or sell any warrants, options or other rights to subscribe for or purchase (A) any shares of Common Stock or (B) any Convertible Securities, whether or not the rights to subscribe, purchase, exchange or convert thereunder are immediately exercisable, and the consideration per share for which additional shares of Common Stock may at any time thereafter be issuable pursuant to such warrants, options or other rights or pursuant to the terms of such Convertible Securities shall be less than the Fair Market Value Per Share, then the Aggregate Number shall be adjusted as provided in Section 6(a)(iii) hereof on the basis that (1) the maximum number of additional shares of Common Stock issuable pursuant to all such warrants, options or other rights or necessary to effect the conversion or exchange of all such Convertible Securities shall be deemed to have been issued as of the date of the determination of the Fair Market Value Per Share as hereinafter provided and (2) the aggregate consideration for such maximum number of additional shares of Common Stock shall be deemed to be the minimum consideration received and receivable by the Company for the issuance of such additional shares of Common Stock pursuant to the terms of such warrants, options or other rights or such Convertible Securities. For purposes of this Section 6(a)(iv), the effective date of such adjustment and the date as of which the Fair Market Value Per Share shall be computed shall be the earliest of (A) the date on which the Company shall take a record of the holders of its Common Stock for the purpose of entitling them to receive any such warrants, options or other rights, (B) the date on which the Company shall enter into a firm contract or commitment for the issuance of such warrants, options or other rights and (C) the date of actual issuance of such warrants, options or other rights. No adjustment of the Aggregate Number shall be made under this Section 6(a)(iv) upon the issuance of any warrants, options or other rights which are issued pursuant to the exercise of any Convertible Securities if an adjustment shall have been made or is contemporaneously made or if no such adjustment shall have been required upon the issuance of such Convertible Securities, pursuant to Section 6(a)(v) hereof.

Warrants and Options. If at any time or from time to time the Company shall take a record of the holders of its Common Stock for the purpose of entitling them to receive a distribution of, or shall in any manner (whether directly, by assumption in a merger in which the Company is the surviving corporation and in which the shareholders of the Company immediately prior to the merger continue to own more than 50% of the Outstanding Common Stock immediately after the merger and for a period of 180 days thereafter, or otherwise) issue or sell any warrants, options or other rights to subscribe for or purchase (A) any shares of Common Stock or (B) any Convertible Securities, whether or not the rights to subscribe, purchase, exchange or convert thereunder are immediately exercisable, and the consideration per share for which additional shares of Common Stock may at any time thereafter be issuable pursuant to such warrants, options or other rights or pursuant to the terms of such Convertible Securities shall be less than the Closing Fair Market Value Per Share, then the Aggregate Number shall be adjusted as provided in Section 6(a)(iii) hereof except to the extent the Aggregate Number was adjusted as provided in Section 6(a)(i) hereof on the basis that (1) the maximum number of additional shares of Common Stock issuable pursuant to all such warrants, options or other rights or necessary to effect the conversion or exchange of all such Convertible Securities shall be deemed to have been issued as of the date of determined in accordance with the determination of the Fair Market Value Per Share as hereinafter provided following sentence and (2) the aggregate consideration for such maximum number of additional shares of Common Stock shall be deemed to be the minimum consideration received and receivable by the Company for the issuance of such additional shares of Common Stock pursuant to the terms of such warrants, options or other rights or such Convertible Securities. For purposes of this Section 6(a)(iv), the effective date of such adjustment and the date as of which the Fair Market Value Per Share shall be computed shall be the earliest of (A) the date on which the Company shall take a record of the holders of its Common Stock for the purpose of entitling them to receive any such warrants, options or other rights, (B) the date on which the Company shall enter into a firm contract or commitment for the issuance of such warrants, options or other rights and (C) the date of actual issuance of such warrants, options or other rights. No adjustment of the Aggregate Number shall be made under this Section 6(a)(iv) upon the issuance of any warrants, options or other rights which are issued pursuant to the exercise of any Convertible Securities if an adjustment shall have been made or is contemporaneously made or if no such adjustment shall have been required upon the issuance of such Convertible Securities, pursuant to Section 6(a)(v) hereof.

Warrants and Options. If at any time or from time to time the Company shall take a record of the holders of its Common Stock for the purpose of entitling them to receive a distribution of, or shall in any manner (whether directly, by assumption in a merger in which the Company is the surviving corporation and in which the shareholders of the Company immediately prior to the merger continue to own more than 50% of the Outstanding Common Stock immediately after the merger and for a period of 180 days thereafter, or otherwise) issue or sell any warrants, options or other rights to subscribe for or purchase (A) any shares of Common Stock or (B) any Convertible Securities, whether or not the rights to subscribe, purchase, exchange or convert thereunder are immediately exercisable, and the consideration per share for which additional shares of Common Stock may at any time thereafter be issuable pursuant to such warrants, options or other rights or pursuant to the terms of such Convertible Securities shall be less than the Fair Market Value Per Share, then the Aggregate Number shall be adjusted as provided in Section 6(a)(iii) hereof on the basis that (1) the maximum number of additional shares of Common Stock issuable pursuant to all such warrants, options or other rights or necessary to effect the conversion or exchange of all such Convertible Securities shall be deemed to have been issued as of the date of the determination of the Fair Market Value Per Share as hereinafter provided and (2) the aggregate consideration for such maximum number of additional shares of Common Stock shall be deemed to be the minimum consideration received and receivable by the Company for the issuance of such additional shares of Common Stock pursuant to the terms of such warrants, options or other rights or such Convertible Securities. For purposes of this Section 6(a)(iv), the effective date of such adjustment and the date as of which the Fair Market Value Per Share shall be computed shall be the earliest of (A) the date on which the Company shall take a record of the holders of its Common Stock for the purpose of entitling them to receive any such warrants, options or other rights, (B) the date on which the Company shall enter into a firm contract or commitment for the issuance of such warrants, options or other rights and (C) the date of actual issuance of such warrants, options or other rights. No adjustment of the Aggregate Number shall be made under this Section 6(a)(iv) upon the issuance of any warrants, options or other rights which are issued pursuant to the exercise of any Convertible Securities if an adjustment shall have been made or is contemporaneously made or if no such adjustment shall have been required upon the issuance of such Convertible Securities, pursuant to Section 6(a)(v) hereof.

Warrants and Options. If at any time or from time to time (a) At the Effective Time, all outstanding warrants issued by the Company shall take a record to purchase shares of the holders of its Company Common Stock (the “Company Warrants”) that have not been surrendered by the holder thereof in exchange for Company Common Stock, will, at the purpose Effective Time, be deemed be a warrant (the “Parent Warrants”) to acquire the same number of entitling them shares of Parent Common Stock as the holder of such Company Warrants would have been entitled to receive a distribution of, or shall pursuant to the Merger had such holder exercised such Company Warrants in any manner (whether directly, by assumption in a merger in which the Company is the surviving corporation and in which the shareholders of the Company full immediately prior to the merger continue to own more than 50% Effective Time at a price per share of the Outstanding Parent Common Stock immediately after equal to the merger and exercise price for a period of 180 days thereafter, or otherwise) issue or sell any warrants, options or other rights to subscribe for or purchase (A) any the shares of Company Common Stock or (B) any Convertible Securities, whether or not the rights to subscribe, purchase, exchange or convert thereunder are immediately exercisable, and the consideration per share for which additional shares of Common Stock may at any time thereafter be issuable otherwise purchasable pursuant to such warrantsCompany Warrant. Schedules 2.10 and 1.7(a)(i) attached hereto set forth the name of each holder of Company Warrants, options or other rights or pursuant to the terms of such Convertible Securities shall be less than the Fair Market Value Per Share, then the Aggregate Number shall be adjusted as provided in Section 6(a)(iii) hereof on the basis that (1) the maximum aggregate number of additional shares of Company Common Stock issuable pursuant to all that each such warrants, options or other rights or necessary to effect the conversion or exchange of all such Convertible Securities shall be deemed to have been issued as of the date of the determination of the Fair Market Value Per Share as hereinafter provided and (2) the aggregate consideration for such maximum number of additional shares of Common Stock shall be deemed to be the minimum consideration received and receivable by the Company for the issuance of such additional shares of Common Stock pursuant to the terms of such warrants, options or other rights or such Convertible Securities. For purposes of this Section 6(a)(iv), the effective date of such adjustment and the date as of which the Fair Market Value Per Share shall be computed shall be the earliest of (A) the date on which the Company shall take a record of the holders of its Common Stock for the purpose of entitling them to receive any such warrants, options or other rights, (B) the date on which the Company shall enter into a firm contract or commitment for the issuance of such warrants, options or other rights and (C) the date of actual issuance of such warrants, options or other rights. No adjustment of the Aggregate Number shall be made under this Section 6(a)(iv) upon the issuance of any warrants, options or other rights which are issued person may purchase pursuant to the exercise of any Convertible Securities if his or her Company Warrants and the aggregate number of shares of Parent Common Stock that each such person may purchase upon exercise of Parent Warrants acquired pursuant to this Section 1.7(a)(i). By its signature hereunder, Parent expressly assumes the obligation to issue Parent Common Stock to the holders of Parent Warrants upon exercise thereof, in accordance with the provisions of this Section 1.7(a)(i). Without limiting the generality of the foregoing, the Company and the Parent shall take all corporate actions as may be necessary and desirable in order to effectuate the transactions contemplated by this Section 1.7(a). (b) Parent shall take all action necessary and appropriate, on or prior to the Effective Time, to authorize and reserve a number of shares of Parent Common Stock sufficient for issuance upon the exercise of Parent Warrants following the Effective Time as contemplated by this Section 1.7. (c) The Company’s option plans, including the 2010 Equity Incentive Plan of the Company, shall be assumed by the Parent, and all outstanding options issued by the Company to purchase shares of Company Common Stock (the “Company Options”) will, at the Effective Time, be deemed be an adjustment shall option (the “Parent Options”) to acquire the same number of shares of Parent Common Stock as the holder of such Company Options would have been made or is contemporaneously made or if no such adjustment shall have been required upon the issuance of such Convertible Securities, entitled to receive pursuant to Section 6(a)(v) hereofthe Merger had such holder exercised such Company Options in full immediately prior to the Effective Time at a price per share of Parent Common Stock equal to the exercise price for the shares of Company Common Stock otherwise purchasable pursuant to such Company Options.

Warrants and Options. If at any time or from time As of the Effective Time, all (i) outstanding options to time purchase Company Common Stock granted by the Company shall take a record of the holders of pursuant to its stock option plans or otherwise ("OPTIONS") and (ii) warrants to purchase Company Preferred Stock or Company Common Stock for ("WARRANTS"), whether vested or unvested, whether or not exercisable, shall be assumed by Broo▇▇. ▇▇mediately after the purpose of entitling them to receive a distribution ofEffective Time, or shall in any manner (whether directly, by assumption in a merger in which the Company is the surviving corporation each Option and in which the shareholders of the Company Warrant outstanding immediately prior to the merger continue to own more than 50% of the Outstanding Common Stock immediately after the merger and for a period of 180 days thereafter, or otherwise) issue or sell any warrants, options or other rights to subscribe for or purchase (A) any shares of Common Stock or (B) any Convertible Securities, whether or not the rights to subscribe, purchase, exchange or convert thereunder are immediately exercisable, and the consideration per share for which additional shares of Common Stock may at any time thereafter be issuable pursuant to such warrants, options or other rights or pursuant to the terms of such Convertible Securities shall be less than the Fair Market Value Per Share, then the Aggregate Number shall be adjusted as provided in Section 6(a)(iii) hereof on the basis that (1) the maximum number of additional shares of Common Stock issuable pursuant to all such warrants, options or other rights or necessary to effect the conversion or exchange of all such Convertible Securities Effective Time shall be deemed to have been issued constitute an option or warrant to acquire, on the same terms and conditions as were applicable under such Option or Warrant at the Effective Time (without giving effect to the Merger), that number of shares of Broo▇▇ Common Stock (rounded to the nearest whole share) as is equal to the number of shares of Company Common Stock or Company Preferred Stock subject to the unexercised portion of such Option or Warrant, as applicable, multiplied by the applicable Exchange Ratio. The exercise price per share of each such assumed Option and Warrant shall be equal to the exercise price of such Option and Warrant immediately prior to the Effective Time, divided by the applicable Exchange Ratio (rounded up to the nearest whole cent). The terms, exercisability, vesting schedule, status as an "incentive stock option" under Section 422 of the date Code, if applicable, and all of the determination other terms of the Fair Market Value Per Share Options and Warrants shall otherwise remain unchanged. As soon as hereinafter practicable after the Effective Time, Broo▇▇ ▇▇▇ll deliver to the holders of Options and Warrants appropriate notices setting forth such holders' rights pursuant to such Options and Warrants, as amended by this Section 2.7, and the agreements evidencing such Options and Warrants shall continue in effect on the same terms and conditions (subject to the amendments provided for in this Section 2.7.) The Board of Directors of the Company (or, if appropriate, a committee thereof) shall adopt such resolutions and take such actions as may be required to cause each Option and Warrant outstanding at the Effective Time to be assumed by Broo▇▇ ▇▇ accordance with this Section 2.7(d). Broo▇▇ ▇▇▇ll take all corporate action necessary to reserve for issuance a sufficient number of shares of Broo▇▇ Common Stock for delivery upon exercise of the Options and Warrants assumed in accordance with this Section 2.7. As soon as practicable after the Effective Time and for so long as any of the assumed Options shall remain outstanding, Broo▇▇ ▇▇▇l use all commercially reasonable efforts to cause the shares of Broo▇▇ ▇▇▇mon Stock issuable upon exercise of the assumed Options to be registered under the Securities Act (2but in any event within thirty (30) calendar days following the aggregate consideration Effective Time) and to comply with the requirements of Securities Act Rule 428 and Form S-8 with respect thereto; provided, however, that the Buyer shall have no obligation to register such shares unless Form S-8 is available for such maximum number of additional shares of Common Stock shall be deemed to be the minimum consideration received and receivable by the Company for the issuance of such additional shares of Common Stock registration pursuant to the terms of such warrants, options or other rights or such Convertible Securities. For purposes of this Section 6(a)(iv), the effective date of such adjustment and the date as of which the Fair Market Value Per Share shall be computed shall be the earliest of (A) the date on which the Company shall take a record provisions of the holders of its Common Stock for the purpose of entitling them to receive any such warrants, options or other rights, (B) the date on which the Company shall enter into a firm contract or commitment for the issuance of such warrants, options or other rights and (C) the date of actual issuance of such warrants, options or other rights. No adjustment of the Aggregate Number shall be made under this Section 6(a)(iv) upon the issuance of any warrants, options or other rights which are issued pursuant to the exercise of any Convertible Securities if an adjustment shall have been made or is contemporaneously made or if no such adjustment shall have been required upon the issuance of such Convertible Securities, pursuant to Section 6(a)(v) hereofAct.

Warrants and Options. If at any time or from time to time the Company shall take a record of the holders of its Common Stock for the purpose of entitling them to receive a distribution of, or shall in any manner (whether directly, by assumption in a merger in which the Company is the surviving corporation and in which the shareholders of the Company immediately prior to the merger continue to own more than 50% of the Outstanding Common Stock immediately after the merger and for a period of 180 days thereafter, or otherwise) issue or sell any warrants, options or other rights to subscribe for or purchase (A) any shares of Common Stock or (B) any Convertible Securities, whether or not the rights to subscribe, purchase, exchange or convert thereunder are immediately exercisable, and the consideration per share for which additional shares of Common Stock may at any time thereafter be issuable pursuant to such warrants, options or other rights or pursuant to the terms of such Convertible Securities shall be less than the Closing Fair Market Value Per Share, then the Aggregate Number shall be adjusted as provided in Section 6(a)(iii) except to the extent the Aggregate Number was adjusted as provided in Section 6(a)(i) hereof on the basis that (1) the maximum number of additional shares of Common Stock issuable pursuant to all such warrants, options or other rights or necessary to effect the conversion or exchange of all such Convertible Securities shall be deemed to have been issued as of the date of determined in accordance with the determination of the Fair Market Value Per Share as hereinafter provided following sentence and (2) the aggregate consideration for such maximum number of additional shares of Common Stock shall be deemed to be the minimum consideration received and receivable by the Company for the issuance of such additional shares of Common Stock pursuant to the terms of such warrants, options or other rights or such Convertible Securities. For purposes of this Section 6(a)(iv), the effective date of such adjustment and the date as of which the Fair Market Value Per Share shall be computed shall be the earliest of (A) the date on which the Company shall take a record of the holders of its Common Stock for the purpose of entitling them to receive any such warrants, options or other rights, (B) the date on which the Company shall enter into a firm contract or commitment for the issuance of such warrants, options or other rights and (C) the date of actual issuance of such warrants, options or other rights. No adjustment of the Aggregate Number shall be made under this Section 6(a)(iv) upon the issuance of any warrants, options or other rights which are issued pursuant to the exercise of any Convertible Securities if an adjustment shall have been made or is contemporaneously made or if no such adjustment shall have been required upon the issuance of such Convertible Securities, pursuant to Section 6(a)(v) hereof.

Warrants and Options. If at any time or from time to time the Company shall take a record of the holders of its Common Stock for the purpose of entitling them to receive a distribution of, or shall in any manner (whether directly, by assumption in a merger in which the Company is the surviving corporation and in which the shareholders of the Company immediately prior to the merger continue to own more than fifty percent (50% %) of the Outstanding Fully Diluted Common Stock immediately after the merger and for a period of 180 at least one hundred eighty (180) days thereafter, or otherwise) issue or sell any warrants, options Fair Market Value Per Share immediately prior to the record date for such Distribution and (ii) the denominator of which shall be the 15 13 or other rights to subscribe for or purchase (A) any shares of Common Stock or (B) any Convertible Securities, whether or not the rights to subscribe, purchase, exchange or convert thereunder are immediately exercisable, and the consideration per share for which additional shares of Common Stock may at any time thereafter be issuable pursuant to such warrants, options or other rights or pursuant to the terms of such Convertible Securities shall be less than the Fair Market Value Per ShareShare (determined on the date specified below), then the Aggregate Number shall be adjusted as provided in Section 6(a)(iii7(a)(iii) hereof on the basis that (1) the maximum number of additional shares of Common Stock issuable pursuant to all such warrants, options or other rights or necessary to effect the conversion or exchange of all such Convertible Securities shall be deemed to have been issued as of the date of the determination of the Fair Market Value Per Share as hereinafter provided and (2) the aggregate consideration for such maximum number of additional shares of Common Stock shall be deemed to be the minimum consideration received and receivable by the Company for the issuance of such additional shares of Common Stock pursuant to the terms of such warrants, options or other rights or such Convertible Securities. For purposes of this Section 6(a)(iv7(a)(iv), the effective date of such adjustment and the date as of which the Fair Market Value Per Share shall be computed shall be the earliest of (A) the date on which the Company shall take a record of the holders of its Common Stock for the purpose of entitling them to receive any such warrants, options or other rights, rights or (B) the date on which the Company shall enter into a firm contract or commitment for the issuance of such warrants, options or other rights and (C) the date of actual issuance of such warrants, options or other rights. No adjustment of the Aggregate Number shall be made under this Section 6(a)(iv) upon the issuance of any warrants, options or other rights which are issued pursuant to the exercise of any Convertible Securities if an adjustment shall have been made or is contemporaneously made or if no such adjustment shall have been required upon the issuance of such Convertible Securities, pursuant to Section 6(a)(v) hereof.

Warrants and Options. If at (a) With respect to any time warrants to purchase Common Stock set forth on Schedule II (each, a "Warrant", and, collectively, the "Warrants"), the Company shall, prior to the Closing, obtain the written agreement of each holder of a Warrant, as set forth on Schedule II, that such Warrant will be cancelled in exchange for the payment of the Warrant Consideration (as defined below). Such written agreements shall be in the form attached hereto as Exhibit A and will include a provision that payment of such Warrant Consideration in respect of any Warrant shall be deemed a release of any and all rights the holder had or from time may have had in and in respect of such Warrant. At the Closing, each Warrant shall be cancelled by the Company pursuant to time such written agreements, and the Company shall take a record pay to each holder thereof an amount equal to the excess of the holders Price Per Common Share over the exercise price of its such Warrant, multiplied by the number of Shares subject to such Warrant (the "Warrant Consideration"), each as set forth on Schedule II attached hereto. (b) Prior to the Closing, the Company shall use commercially reasonable efforts to obtain the written agreement of each holder of options to purchase Common Stock (each, an "Option" and collectively, the "Options") under the Company's 2000 Stock Option Plan (the "Option Plan"), as set forth on Schedule II, that such Options will be cancelled in exchange for the purpose payment of entitling them the Option Consideration (as defined below). Such written agreements shall be in form and substance reasonably satisfactory to receive a distribution of, or shall in any manner (whether directly, by assumption in a merger in which the Buyer and the Company is and will include a provision that payment of such Option Consideration in respect of any Option shall be deemed a release of any and all rights the surviving corporation holder had or may have had in and in which respect of such Option. At the shareholders of the Company immediately prior to the merger continue to own more than 50% of the Outstanding Common Stock immediately after the merger and for a period of 180 days thereafterEffective Time, or otherwise) issue or sell any warrants, options or other rights to subscribe for or purchase (A) any shares of Common Stock or (B) any Convertible Securities, each outstanding Option whether or not then exercisable, shall be cancelled by the rights Company pursuant to subscribe, purchase, exchange or convert thereunder are immediately exercisablesuch written agreements, and the consideration Company shall pay to each holder of cancelled Options at the Closing an amount in cash equal to the excess of the Price Per Common Share over the per share for which additional shares of Common Stock may at any time thereafter be issuable pursuant to such warrants, options or other rights or pursuant to the terms exercise price of such Convertible Securities shall be less than Option, multiplied by the Fair Market Value Per Share, then the Aggregate Number shall be adjusted as provided in Section 6(a)(iii) hereof on the basis that (1) the maximum number of additional shares Shares underlying such Option (the "Option Consideration"), minus the amount of Common Stock issuable pursuant to all such warrantsany withholding required under federal, options state or other rights or necessary to effect the conversion or exchange of all such Convertible Securities shall be deemed to have been issued local law as a result of the date of the determination of the Fair Market Value Per Share as hereinafter provided and (2) the aggregate consideration for such maximum number of additional shares of Common Stock shall be deemed to be the minimum consideration received and receivable by the Company for the issuance of such additional shares of Common Stock pursuant to the terms of such warrants, options or other rights or such Convertible Securities. For purposes of this Section 6(a)(iv), the effective date of such adjustment and the date as of which the Fair Market Value Per Share shall be computed shall be the earliest of (A) the date on which the Company shall take a record of the holders of its Common Stock for the purpose of entitling them to receive any such warrants, options or other rights, (B) the date on which the Company shall enter into a firm contract or commitment for the issuance of such warrants, options or other rights and (C) the date of actual issuance of such warrants, options or other rights. No adjustment of the Aggregate Number shall be made transactions contemplated under this Section 6(a)(iv) upon the issuance of any warrants, options or other rights which are issued pursuant to the exercise of any Convertible Securities if an adjustment shall have been made or is contemporaneously made or if no such adjustment shall have been required upon the issuance of such Convertible Securities, pursuant to Section 6(a)(v) hereof2.2.

Warrants and Options. If at any time or from time to time the Company shall take a record of the holders of its Common Stock for the purpose of entitling them to receive a distribution of, or shall in any manner (whether directly, by assumption in a merger in which the Company is the surviving corporation and in which the shareholders of the Company immediately prior to the merger continue to own more than 50% of the Outstanding Common Stock immediately after the merger and for a period of 180 days thereafter, or otherwise) issue or sell any warrants, options or other rights to subscribe for or purchase (A) any shares of Common Stock or (B) any Convertible Securities, whether or not the rights to subscribe, purchase, exchange or convert thereunder are immediately exercisable, and the consideration per share for which additional shares of Common Stock may at any time thereafter be issuable pursuant to such warrants, options or other rights or pursuant to the terms of such Convertible Securities shall be less than the Fair Market Value Per Share, then the Aggregate Number shall be adjusted as provided in Section 6(a)(iii) hereof on the basis that (1) the maximum number of additional shares of Common Stock issuable pursuant to all such warrants, options or other rights or necessary to effect the conversion or exchange of all such Convertible Securities shall be deemed to have been issued as of the date of the determination of the Fair Market Value Per Share as hereinafter provided and (2) the aggregate consideration for such maximum number of additional shares of Common Stock shall be deemed to be the minimum consideration received and receivable by the Company for the issuance of such additional shares of Common Stock pursuant to the terms of such warrants, options or other rights or such Convertible Securities. For purposes of this Section 6(a)(iv), the effective date of such adjustment and the date as of which the Fair Market Value Per Share shall be computed shall be the earliest of (A) the date on which the Company shall take a record of the holders of its Common Stock for the purpose of entitling them to receive any such warrants, options or other rights, (B) the date on which the Company shall enter into a firm contract or commitment for the issuance of such warrants, options or other rights and (C) the date of actual issuance of such warrants, options or other rights. No adjustment This subsection (iv) does not apply to a distribution of the Aggregate Number shall be made under this Section 6(a)(iv) upon the issuance of any warrants, options or other rights which are issued pursuant to the exercise Amended and Restated Rights Agreement, dated as of any Convertible Securities if an adjustment shall have been made April 14, 2003, as in effect on the date hereof, between the Company and Wachovia Bank National Association, as Rights Agent, (or is contemporaneously made or if no such adjustment shall have been required upon the issuance successor plan of such Convertible Securities, pursuant to Section 6(a)(v) hereofsimilar purpose and effect).

Warrants and Options. If at any time or from time to time the Company shall take a record of the holders of its Common Stock for the purpose of entitling them to receive a distribution of, or shall in any manner (whether directly, by assumption in a merger in which the Company is the surviving corporation and in which the shareholders of the Company immediately prior to the merger continue to own more than 50% of the Outstanding Common Stock immediately after the merger and for a period of 180 days thereafter, or otherwise) issue or sell any warrants, options or other rights to subscribe for or purchase (A) any shares of Common Stock or (B) any Convertible Securities, whether or not the rights to subscribe, purchase, exchange or convert thereunder are immediately exercisable, and the consideration per share for which additional shares of Common Stock may at any time thereafter be issuable pursuant to such warrants, options or other rights or pursuant to the terms of such Convertible Securities shall be less than the Fair Market Value Per Share, then the Aggregate Number shall be adjusted as provided in Section 6(a)(iii) hereof on the basis that (1) the maximum number of additional shares of Common Stock issuable pursuant to all such warrants, options or other rights or necessary to effect the conversion or exchange of all such Convertible Securities shall be deemed to have been issued as of the date of the determination of the Fair Market Value Per Share as hereinafter provided and (2) the aggregate consideration for such maximum number of additional shares of Common Stock shall be deemed to be the minimum consideration received and receivable by the Company for the issuance of such additional shares of Common Stock pursuant to the terms of such warrants, options or other rights or such Convertible Securities. For purposes of this Section 6(a)(iv), the effective date of such adjustment and the date as of which the Fair Market Value Per Share shall be computed shall be the earliest of (A) the date on which the Company shall take a record of the holders of its Common Stock for the purpose of entitling them to receive any such warrants, options or other rights, (B) the date on which the Company shall enter into a firm contract or commitment for the issuance of such warrants, options or other rights and (C) the date of actual issuance of such warrants, options or other rights. No adjustment of the Aggregate Number shall be made under this Section 6(a)(iv) upon the issuance of any warrants, options or other rights which are issued pursuant to the exercise of any Convertible Securities if an adjustment shall have been made or is contemporaneously made or if no such adjustment shall have been required upon the issuance of such Convertible Securities, pursuant to Section 6(a)(v) hereof.the