BUT EXCLUDING ANY
SHARES OF COMMON STOCK OWNED OR HELD BY OR FOR THE ACCOUNT OF THE COMPANY OR
ISSUABLE UPON CONVERSION OF THE PREFERRED SHARES.
(XVII)
"CONVERSION AMOUNT" MEANS THE SUM OF (1) THE ADDITIONAL AMOUNT AND
(2) THE STATED VALUE.
(XVIII)
"CONVERSION PRICE" MEANS $5.75, SUBJECT TO ADJUSTMENT AS PROVIDED
HEREIN.
(XIX)
"CONVERTIBLE SECURITIES" MEANS ANY STOCK OR SECURITIES (OTHER THAN
OPTIONS) DIRECTLY OR INDIRECTLY CONVERTIBLE INTO OR EXCHANGEABLE OR EXERCISABLE
FOR COMMON STOCK.
(XX)
"DEFAULT CONVERSION PRICE" MEANS AS OF ANY DATE OF DETERMINATION,
THE PRODUCT OF (A) 90% AND (B) THE LOWER OF (1) THE CONVERSION PRICE AND (2)
$[
](1), SUBJECT TO ADJUSTMENT AS PROVIDED HEREIN.
(XXI)
"DIVIDEND RATE" MEANS (I) 7.875% PER ANNUM AND (II) FOR THE PERIOD
FROM AND AFTER THE OCCURRENCE OF A TRIGGERING EVENT THROUGH SUCH TIME THAT SUCH
TRIGGERING EVENT IS CURED, FIFTEEN PERCENT (15%) PER ANNUM.
(XXII)
"ELECTING HOLDER" MEANS ANY HOLDER OF PREFERRED SHARES THAT HAS
IRREVOCABLY ELECTED, AS SUCH ELECTION IS SET FORTH IN COLUMN (7) OF THE SCHEDULE
OF BUYERS TO THE SECURITIES PURCHASE AGREEMENT, TO "PIK" DIVIDENDS ON EACH
DIVIDEND DATE RATHER THAN RECEIVE CASH ON EACH SUCH DATE.
THE ELECTION TO
RECEIVE "PIK" DIVIDENDS SHALL BE BINDING ANY SUBSEQUENT ASSIGNEE OR TRANSFEREE
OF SUCH HOLDER'S PREFERRED SHARES.
(XXIII)
"ELIGIBLE MARKET" MEANS THE NYSE, THE NASDAQ GLOBAL SELECT MARKET,
THE NASDAQ GLOBAL MARKET OR THE NASDAQ CAPITAL MARKET.
(XXIV)
"EQUITY CONDITIONS" MEANS:
(I) ON EACH DAY DURING THE PERIOD
BEGINNING SIX (6) MONTHS PRIOR TO THE APPLICABLE DATE OF DETERMINATION AND
ENDING ON AND INCLUDING THE APPLICABLE DATE OF DETERMINATION (THE "EQUITY
CONDITIONS MEASURING PERIOD"), EITHER
(1)
Insert price equal to the arithmetic average of the Weighted
Average Price of the Common Stock during the five (5) Trading Day period ending
on the Trading Day immediately prior to the Subscription Date.
5
(X) THE REGISTRATION STATEMENT (AS DEFINED IN THE REGISTRATION RIGHTS AGREEMENT)
FILED PURSUANT TO THE REGISTRATION RIGHTS AGREEMENT SHALL BE EFFECTIVE AND
AVAILABLE FOR THE RESALE OF ALL OF THE REGISTRABLE SECURITIES IN ACCORDANCE WITH
THE TERMS OF THE REGISTRATION RIGHTS AGREEMENT AND THERE SHALL NOT HAVE BEEN ANY
GRACE PERIODS OR (Y) ALL SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THE
PREFERRED SHARES SHALL BE ELIGIBLE FOR SALE WITHOUT RESTRICTION AND WITHOUT THE
NEED FOR REGISTRATION UNDER ANY APPLICABLE FEDERAL OR STATE SECURITIES LAWS;
(II) ON EACH DAY DURING THE EQUITY CONDITIONS MEASURING PERIOD, THE COMMON STOCK
IS DESIGNATED FOR QUOTATION ON A PRINCIPAL MARKET AND SHALL NOT HAVE BEEN
SUSPENDED FROM TRADING ON SUCH EXCHANGE OR MARKET (OTHER THAN SUSPENSIONS OF NOT
MORE THAN THREE (3) DAYS AND OCCURRING PRIOR TO THE APPLICABLE DATE OF
DETERMINATION DUE TO BUSINESS ANNOUNCEMENTS BY THE COMPANY) NOR SHALL
PROCEEDINGS FOR SUCH DELISTING OR SUSPENSION BY SUCH EXCHANGE OR MARKET HAVE
BEEN COMMENCED, THREATENED OR PENDING EITHER (A) IN WRITING BY SUCH EXCHANGE OR
MARKET, WHICH HAS NOT BEEN SATISFIED IN FAVOR OF THE COMPANY OR (B) BY FALLING
BELOW THE MINIMUM