OR REGIONAL SECURITIES EXCHANGE, AS
REPORTED ON THE QUOTATION SYSTEM ON WHICH SUCH SECURITY IS QUOTED. IF THE COMMON
STOCK IS NOT LISTED OR ADMITTED FOR TRADING ON A UNITED
31
STATES NATIONAL OR REGIONAL SECURITIES EXCHANGE AND NOT REPORTED ON A QUOTATION
SYSTEM ON THE RELEVANT DATE, THE "CLOSING PRICE" WILL BE THE LAST QUOTED BID
PRICE FOR THE COMMON STOCK IN THE OVER-THE-COUNTER MARKET ON THE RELEVANT DATE
AS REPORTED BY THE NATIONAL QUOTATION BUREAU OR SIMILAR ORGANIZATION.
IF THE
COMMON STOCK IS NOT SO QUOTED, THE LAST REPORTED SALE PRICE WILL BE THE AVERAGE
OF THE MID-POINT OF THE LAST BID AND ASK PRICES FOR THE COMMON STOCK ON THE
RELEVANT DATE FROM EACH OF AT LEAST THREE NATIONALLY RECOGNIZED INVESTMENT
BANKING FIRMS SELECTED BY THE COMPANY FOR THIS PURPOSE.
(H)
"COMPANY RIGHTS PLAN" MEANS THAT CERTAIN AMENDED AND RESTATED
RIGHTS AGREEMENT, DATED AS OF APRIL [23], 2009, BETWEEN THE COMPANY AND AMERICAN
STOCK TRANSFER & TRUST COMPANY.
(I)
"CONTROL," "CONTROLLING," "CONTROLLED BY" AND "UNDER COMMON
CONTROL WITH," WITH RESPECT TO ANY PERSON, MEANS THE POSSESSION, DIRECTLY OR
INDIRECTLY, OF THE POWER TO DIRECT OR CAUSE THE DIRECTION OF THE MANAGEMENT AND
POLICIES OF SUCH PERSON, WHETHER THROUGH THE OWNERSHIP OF VOTING STOCK, BY
CONTRACT OR OTHERWISE.
(J)
"CURRENT MARKET PRICE" OF COMMON STOCK ON ANY DAY MEANS THE
AVERAGE OF THE CLOSING PRICES PER SHARE OF COMMON STOCK FOR EACH OF THE FIVE
(5) CONSECUTIVE TRADING DAYS ENDING ON THE EARLIER OF THE DAY IN QUESTION AND
THE DAY BEFORE THE EX-DIVIDEND DATE WITH RESPECT TO THE ISSUANCE OR DISTRIBUTION
REQUIRING SUCH COMPUTATION.
(K)
"DIVIDEND PAYMENT DATE" MEANS (I) EACH JANUARY 1, APRIL 1, JULY 1
AND OCTOBER 1 OF EACH YEAR, COMMENCING ON JULY 1, 2009, (II) WITH RESPECT TO ANY
SHARES OF SERIES A PREFERRED STOCK THAT IS TO BE CONVERTED OR REDEEMED, THE
CONVERSION DATE, THE REDEMPTION DATE OR THE COMPANY REDEMPTION DATE, AS
APPLICABLE, AND (III) ANY DATE ON WHICH PARTICIPATING DIVIDENDS ARE PAID (IF
ANY); PROVIDED THAT IF ANY SUCH DIVIDEND PAYMENT DATE WOULD OTHERWISE OCCUR ON A
DAY THAT IS NOT A BUSINESS DAY, SUCH DIVIDEND PAYMENT DATE SHALL INSTEAD BE (AND
ANY DIVIDEND PAYABLE ON SERIES A PREFERRED STOCK ON SUCH DIVIDEND DATE SHALL
INSTEAD BE PAYABLE ON) THE IMMEDIATELY SUCCEEDING BUSINESS DAY.
(L)
"DIVIDEND PERIOD" MEANS THE PERIOD WHICH COMMENCES ON AND
INCLUDES A DIVIDEND PAYMENT DATE (OTHER THAN THE INITIAL DIVIDEND PERIOD WHICH
SHALL COMMENCE ON AND INCLUDE THE SERIES A ORIGINAL ISSUANCE DATE) PURSUANT TO
CLAUSES (I) AND (II) OF THE DEFINITION OF "DIVIDEND PAYMENT DATE" AND ENDS ON
AND INCLUDES THE CALENDAR DAY NEXT PRECEDING THE NEXT DIVIDEND PAYMENT DATE.
(M)
"DIVIDEND RATE" MEANS 10.0% PER ANNUM.
(N)
"EQUITY SECURITIES" MEANS (X) ANY SHARES OF CAPITAL STOCK OF THE
COMPANY, (Y) ANY RIGHTS, OPTIONS, WARRANTS OR SIMILAR SECURITIES TO SUBSCRIBE
FOR, PURCHASE OR OTHERWISE ACQUIRE ANY SHARES OF CAPITAL STOCK OF THE COMPANY,
AND (Z) CAPITAL STOCK OR OTHER EQUITY SECURITIES DIRECTLY OR INDIRECTLY