IN ACCORDANCE WITH GAAP.
(XII)
"CONVERSION AMOUNT" MEANS THE STATED VALUE.
(XIII)
"CONVERSION PRICE" MEANS, WITH RESPECT TO THE
SHARES OF SERIES A PREFERRED STOCK, AS OF ANY CONVERSION DATE OR OTHER DATE OF
DETERMINATION, $2.00, SUBJECT TO ADJUSTMENT AS PROVIDED HEREIN.
(XIV)
"CONVERTIBLE SECURITIES" MEANS ANY SHARES OR
SECURITIES (OTHER THAN OPTIONS) DIRECTLY OR INDIRECTLY CONVERTIBLE INTO OR
EXCHANGEABLE OR EXERCISABLE FOR COMMON SHARES.
(XV)
"DISPOSITION" MEANS ANY TRANSACTION, OR
SERIES OF RELATED TRANSACTIONS, PURSUANT TO WHICH THE COMPANY OR ANY OF ITS
SUBSIDIARIES SELLS, ASSIGNS, TRANSFERS OR OTHERWISE DISPOSES OF ANY PROPERTY OR
ASSETS (WHETHER NOW OWNED OR HEREAFTER ACQUIRED) TO ANY PERSON (OTHER THAN THE
COMPANY OR ANY OF ITS SUBSIDIARIES), IN EACH CASE, WHETHER OR NOT THE
CONSIDERATION THEREFOR CONSISTS OF CASH, SECURITIES OR OTHER ASSETS OWNED BY THE
ACQUIRING PERSON, EXCLUDING ANY SALES OF INVENTORY IN THE ORDINARY COURSE OF
BUSINESS ON ORDINARY BUSINESS TERMS.
(XVI)
"DIVIDEND RATE" MEANS (I) TEN PERCENT (10%) PER
ANNUM FOR THE PERIOD FROM THE DATE HEREOF UNTIL THE EFFECTIVE DATE (AS DEFINED
IN THE REGISTRATION RIGHTS AGREEMENT) AND (II) THEREAFTER SIX PERCENT (6%) PER
ANNUM; PROVIDED, THAT, SUBJECT TO THE LIMITATION ON DAMAGES (AS HEREINAFTER
DEFINED), FOR THE PERIOD FROM AND AFTER THE OCCURRENCE
OF A TRIGGERING EVENT
THROUGH SUCH TIME THAT SUCH TRIGGERING EVENT IS CURED (THE "TRIGGERING PERIOD"),
FIFTEEN PERCENT (15%) PER ANNUM (THE "TRIGGERING PERIOD DIVIDEND RATE").
(XVII)
"EBITDA" MEANS, FOR ANY PERIOD, THE CONSOLIDATED NET
INCOME OF THE COMPANY AND ITS SUBSIDIARIES FOR SUCH PERIOD, PLUS (I) WITHOUT
DUPLICATION, THE SUM OF THE FOLLOWING AMOUNTS OF THE COMPANY AND ITS
SUBSIDIARIES FOR SUCH PERIOD AND TO THE EXTENT DEDUCTED IN DETERMINING
CONSOLIDATED NET INCOME OF SUCH PERSON FOR SUCH PERIOD:
(A) CONSOLIDATED NET
INTEREST EXPENSE, (B) INCOME TAX EXPENSE, (C) DEPRECIATION EXPENSE, AND
(D) AMORTIZATION EXPENSE.
(XVIII)
"ELIGIBLE MARKET" MEANS THE PRINCIPAL MARKET, NYSE,
THE NASDAQ NATIONAL MARKET, THE AMERICAN STOCK EXCHANGE OR THE NASDAQ CAPITAL
MARKET.
4
(XIX)
"EQUITY CONDITIONS" MEANS:
(I) ON EACH DAY
DURING THE PERIOD BEGINNING ONE MONTH PRIOR TO THE APPLICABLE DATE OF
DETERMINATION AND ENDING ON AND INCLUDING THE APPLICABLE DATE OF DETERMINATION
(EITHER (X) THE REGISTRATION STATEMENT (AS DEFINED IN THE REGISTRATION RIGHTS
AGREEMENT, THE "REGISTRATION STATEMENT") 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 ON EACH DAY THERE SHALL NOT HAVE BEEN ANY GRACE PERIODS (AS
DEFINED IN THE REGISTRATION RIGHTS AGREEMENT) OR (Y) ALL COMMON SHARES ISSUABLE
UPON CONVERSION OF THE SHARES OF SERIES A PREFERRED STOCK AND THE EXERCISE OF
WARRANTS 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 PERIOD BEGINNING THREE MONTHS PRIOR TO THE APPLICABLE DATE OF
DETERMINATION AND ENDING AND INCLUDING THE APPLICABLE DATE OF DETERMINATION (THE
"EQUITY CONDITIONS MEASURING PERIOD"), THE COMMON SHARES ARE DESIGNATED FOR
QUOTATION