MAY BE ISSUABLE OR PAYABLE
WITH RESPECT TO OR IN EXCHANGE FOR A NUMBER OF OUTSTANDING SHARES OF SUCH COMMON
STOCK EQUAL TO THE NUMBER OF SHARES OF SUCH COMMON STOCK IMMEDIATELY THERETOFORE
ISSUABLE UPON CONVERSION OF THE SERIES D PREFERRED STOCK HAD SUCH
REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, MERGER, SALE, TRANSFER OR OTHER
DISPOSITION NOT TAKEN PLACE, AND IN ANY SUCH CASE APPROPRIATE PROVISIONS SHALL
BE MADE WITH RESPECT TO THE RIGHTS AND INTERESTS OF EACH HOLDER OF SERIES D
PREFERRED STOCK TO THE END THAT THE PROVISIONS HEREOF (INCLUDING WITHOUT
LIMITATION PROVISIONS FOR ADJUSTMENT OF THE CONVERSION PRICE) SHALL THEREAFTER
BE APPLICABLE, AS NEARLY EQUIVALENT AS MAY BE PRACTICABLE IN RELATION TO ANY
SHARES OF STOCK, SECURITIES OR PROPERTY OR CASH THEREAFTER DELIVERABLE UPON THE
CONVERSION THEREOF.
THE CORPORATION SHALL NOT EFFECT ANY SUCH REORGANIZATION,
RECLASSIFICATION, CONSOLIDATION, MERGER, SALE, TRANSFER OR OTHER DISPOSITION,
UNLESS PRIOR TO OR SIMULTANEOUSLY WITH THE CONSUMMATION THEREOF THE SUCCESSOR
CORPORATION (IF OTHER THAN THE CORPORATION) RESULTING FROM SUCH REORGANIZATION,
RECLASSIFICATION, CONSOLIDATION OR MERGER OR THE CORPORATION PURCHASING OR
OTHERWISE ACQUIRING SUCH PROPERTIES SHALL ASSUME, BY WRITTEN INSTRUMENT EXECUTED
AND MAILED OR DELIVERED TO THE HOLDERS OF SERIES D PREFERRED STOCK AT THE LAST
ADDRESS OF SUCH HOLDERS APPEARING ON THE BOOKS OF THE CORPORATION, THE
OBLIGATION TO DELIVER TO SUCH HOLDERS SUCH SHARES OF STOCK, SECURITIES OR
PROPERTIES OR CASH AS, IN ACCORDANCE WITH THE FOREGOING PROVISIONS, SUCH HOLDERS
MAY BE ENTITLED TO ACQUIRE.
THE ABOVE PROVISIONS OF THIS SUBPARAGRAPH SHALL
SIMILARLY APPLY TO SUCCESSIVE REORGANIZATIONS, RECLASSIFICATIONS,
CONSOLIDATIONS, MERGERS, SALES, TRANSFERS OR OTHER DISPOSITIONS.
(I)
CERTAIN EVENTS.
IF ANY EVENT OCCURS AS TO WHICH IN THE
REASONABLE OPINION OF THE BOARD OF DIRECTORS OF THE CORPORATION, IN GOOD FAITH,
THE OTHER PROVISIONS OF THIS SECTION 7 ARE NOT STRICTLY APPLICABLE OR IF
STRICTLY APPLICABLE WOULD NOT FAIRLY PROTECT THE CONVERSION RIGHTS OF THE
HOLDERS OF THE SERIES D PREFERRED STOCK IN ACCORDANCE WITH THE ESSENTIAL INTENT
AND PRINCIPLES OF SUCH PROVISIONS, THEN SUCH BOARD OF DIRECTORS, ACTING BY A
VOTE OF AT LEAST A MAJORITY OF THE MEMBERS THEREOF, SHALL PROVIDE FOR THE
BENEFIT OF HOLDERS OF SHARES OF SERIES D PREFERRED STOCK AN ADJUSTMENT, IF ANY,
ON A BASIS CONSISTENT WITH SUCH ESSENTIAL INTENT AND PRINCIPLES, NECESSARY TO
PRESERVE, WITHOUT DILUTION, THE RIGHTS OF THE HOLDERS OF THE SERIES D PREFERRED
STOCK.
UPON SUCH VOTE BY THE BOARD OF DIRECTORS, THE CORPORATION SHALL
FORTHWITH MAKE THE ADJUSTMENTS DESCRIBED THEREIN; PROVIDED, HOWEVER, THAT NO
SUCH ADJUSTMENTS SHALL HAVE THE EFFECT OF INCREASING THE CONVERSION PRICE AS
OTHERWISE DETERMINED PURSUANT TO THIS SECTION 7 EXCEPT IN THE EVENT OF A
15
COMBINATION OF SHARES OF THE TYPE CONTEMPLATED IN SECTION 7(G) AND THEN IN NO
EVENT TO AN AMOUNT LARGER THAN THE CONVERSION PRICE AS ADJUSTED PURSUANT TO
SECTION 7(G).
(J)
PROHIBITION OF CERTAIN ACTIONS.
THE CORPORATION WILL NOT TAKE
ANY ACTION THAT WOULD RESULT IN ANY ADJUSTMENT OF THE CONVERSION PRICE PURSUANT
TO THE TERMS HEREOF IF THE TOTAL NUMBER OF SHARES OF COMMON