INTERESTS.
IN COMPUTING ADJUSTMENTS UNDER THIS
SECTION 4, FRACTIONAL INTERESTS IN COMMON STOCK SHALL BE TAKEN INTO ACCOUNT TO
THE NEAREST 1/10TH OF A SHARE.
(D)
WHEN ADJUSTMENT NOT REQUIRED.
IF COMPANY SHALL TAKE A RECORD OF
THE HOLDERS OF ITS COMMON STOCK FOR THE PURPOSE OF ENTITLING THEM TO RECEIVE A
DIVIDEND OR DISTRIBUTION OR SUBSCRIPTION OR PURCHASE RIGHTS AND SHALL,
THEREAFTER AND BEFORE THE DISTRIBUTION TO STOCKHOLDERS THEREOF, LEGALLY ABANDON
ITS PLAN TO PAY OR DELIVER SUCH DIVIDEND, DISTRIBUTION, SUBSCRIPTION OR PURCHASE
RIGHTS, THEN THEREAFTER NO ADJUSTMENT SHALL BE REQUIRED BY REASON OF THE TAKING
OF SUCH RECORD AND ANY SUCH ADJUSTMENT PREVIOUSLY MADE IN RESPECT THEREOF SHALL
BE RESCINDED AND ANNULLED.
(E)
ESCROW OF WARRANT STOCK.
IF AFTER ANY
PROPERTY BECOMES DISTRIBUTABLE PURSUANT TO THIS SECTION 4 BY REASON OF THE
TAKING OF ANY RECORD OF THE HOLDERS OF COMMON STOCK, BUT PRIOR TO THE OCCURRENCE
OF THE EVENT FOR WHICH SUCH RECORD IS TAKEN, AND HOLDER EXERCISES THIS WARRANT,
ANY ADDITIONAL SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE BY REASON OF SUCH
ADJUSTMENT SHALL BE DEEMED THE LAST SHARES OF COMMON STOCK FOR WHICH THIS
WARRANT IS EXERCISED (NOTWITHSTANDING ANY OTHER PROVISION TO THE CONTRARY
HEREIN) AND SUCH SHARES OR OTHER PROPERTY SHALL BE HELD IN ESCROW FOR HOLDER BY
COMPANY TO BE ISSUED TO HOLDER UPON AND TO THE EXTENT THAT THE EVENT ACTUALLY
TAKES PLACE, UPON PAYMENT OF THE THEN CURRENT WARRANT PRICE.
NOTWITHSTANDING
ANY OTHER PROVISION TO THE CONTRARY HEREIN, IF THE EVENT FOR WHICH SUCH RECORD
WAS TAKEN FAILS TO OCCUR OR IS RESCINDED, THEN SUCH ESCROWED SHARES SHALL BE
CANCELLED BY COMPANY AND ESCROWED PROPERTY RETURNED TO COMPANY.
12
4.8
CHALLENGE TO GOOD FAITH DETERMINATION.
WHENEVER THE BOARD SHALL
BE REQUIRED TO MAKE A DETERMINATION IN GOOD FAITH OF THE FAIR MARKET VALUE OF
ANY ITEM UNDER THIS SECTION 4, SUCH DETERMINATION MAY BE CHALLENGED IN GOOD
FAITH BY THE REQUIRED HOLDERS, AND ANY DISPUTE SHALL BE RESOLVED BY AN
INVESTMENT BANKING OR VALUATION FIRM OF RECOGNIZED NATIONAL STANDING SELECTED BY
COMPANY AND ACCEPTABLE TO THE REQUIRED HOLDERS.
4.9
REORGANIZATION, RECLASSIFICATION, MERGER, CONSOLIDATION OR
DISPOSITION OF ASSETS.
IN CASE OF ANY ORGANIC CHANGE (OR ANY OTHER MERGER OR
CONSOLIDATION TO WHICH COMPANY IS A PARTY, WHICH FOR PURPOSES OF THIS
SECTION 4.9 SHALL BE DEEMED AN ORGANIC CHANGE), EACH HOLDER SHALL HAVE THE RIGHT
THEREAFTER TO RECEIVE, UPON EXERCISE OF THE WARRANT, COMMON STOCK ISSUABLE UPON
SUCH EXERCISE PRIOR TO CONSUMMATION OF SUCH ORGANIC CHANGE, THE KIND AND AMOUNT
OF SHARES OF STOCK UPON THE CONSUMMATION OF SUCH ORGANIC CHANGE BY A HOLDER OF
THAT NUMBER OF SHARES OF COMMON STOCK INTO WHICH THE WARRANT WAS EXERCISABLE
IMMEDIATELY PRIOR TO SUCH ORGANIC CHANGE.
IN CASE OF ANY ORGANIC CHANGE, THE
SUCCESSOR OR ACQUIRING PERSON (IF OTHER THAN COMPANY) SHALL EXPRESSLY ASSUME THE
DUE AND PUNCTUAL OBSERVANCE AND PERFORMANCE OF EACH AND EVERY COVENANT AND
CONDITION OF THIS WARRANT TO BE PERFORMED AND OBSERVED BY COMPANY AND ALL THE
OBLIGATIONS AND