HELD BY THE PERSON OR PERSONS MAKING OR PARTY TO, OR ASSOCIATED OR
AFFILIATED WITH THE PERSONS MAKING OR PARTY TO, SUCH PURCHASE, TENDER OR
EXCHANGE OFFER), OR (IV) CONSUMMATE A SHARE PURCHASE AGREEMENT OR OTHER BUSINESS
COMBINATION (INCLUDING, WITHOUT LIMITATION, A REORGANIZATION, RECAPITALIZATION,
SPIN-OFF OR SCHEME OF ARRANGEMENT) WITH ANOTHER PERSON OR GROUP OF RELATED
PERSONS (AS DEFINED IN SECTIONS 13(D) AND 14(D) OF THE EXCHANGE ACT) WHEREBY
SUCH OTHER PERSON OR GROUP ACQUIRES MORE THAN THE 50% OF THE OUTSTANDING VOTING
SHARES (NOT INCLUDING ANY VOTING SHARES HELD BY THE OTHER PERSON OR OTHER
PERSONS MAKING OR PARTY TO, OR ASSOCIATED OR AFFILIATED WITH THE OTHER PERSONS
MAKING OR PARTY TO, SUCH SHARE PURCHASE AGREEMENT OR OTHER BUSINESS
COMBINATION), PROVIDED HOWEVER, A FUNDAMENTAL TRANSACTION SHALL NOT INCLUDE (I)
ANY REORGANIZATION, RECAPITALIZATION OR RECLASSIFICATION OF THE COMMON SHARES IN
WHICH HOLDERS OF THE COMPANY'S VOTING POWER IMMEDIATELY PRIOR TO SUCH
REORGANIZATION, RECAPITALIZATION OR RECLASSIFICATION CONTINUE AFTER SUCH
REORGANIZATION, RECAPITALIZATION OR RECLASSIFICATION TO HOLD PUBLICLY TRADED
SECURITIES AND, DIRECTLY OR INDIRECTLY, THE VOTING POWER OF THE SURVIVING ENTITY
OR ENTITIES NECESSARY TO ELECT A MAJORITY OF THE MEMBERS OF THE BOARD OF
DIRECTORS (OR THEIR EQUIVALENT IF OTHER THAN A CORPORATION) OF SUCH ENTITY OR
ENTITIES, OR (II) PURSUANT TO A MIGRATORY MERGER EFFECTED SOLELY FOR THE PURPOSE
OF CHANGING THE JURISDICTION OF INCORPORATION OF THE COMPANY.
(E)
"GAAP" MEANS UNITED STATES GENERALLY ACCEPTED ACCOUNTING PRINCIPLES,
CONSISTENTLY APPLIED.
(F)
"MATURITY DATE" MEANS MARCH 27, 2012.
(G)
"PERSON" MEANS AN INDIVIDUAL, A LIMITED LIABILITY COMPANY, A PARTNERSHIP, A
JOINT VENTURE, A CORPORATION, A TRUST, AN UNINCORPORATED ORGANIZATION, ANY OTHER
ENTITY AND A GOVERNMENT OR ANY DEPARTMENT OR AGENCY THEREOF.
(H)
"PRINCIPAL MARKET" MEANS THE NASDAQ GLOBAL MARKET.
17
(I)
"REDEMPTION NOTICES" MEANS, COLLECTIVELY, THE EVENT OF DEFAULT REDEMPTION
NOTICES, AND THE FUNDAMENTAL TRANSACTION REDEMPTION NOTICES, EACH OF THE
FOREGOING, INDIVIDUALLY, A REDEMPTION NOTICE.
(J)
"REGISTRATION RIGHTS AGREEMENT" MEANS THAT CERTAIN REGISTRATION RIGHTS
AGREEMENT DATED AS OF THE CLOSING DATE BY AND AMONG THE COMPANY AND THE INITIAL
HOLDERS OF THE NOTES RELATING TO, AMONG OTHER THINGS, THE REGISTRATION OF THE
RESALE OF THE COMMON SHARES ISSUABLE UPON CONVERSION OF THE NOTES.
(K)
"REQUIRED HOLDERS" MEANS THE HOLDERS OF NOTES REPRESENTING AT LEAST A
MAJORITY OF THE AGGREGATE PRINCIPAL AMOUNT OF THE NOTES THEN OUTSTANDING.
(L)
"SEC" MEANS THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION.
(M)
"TAX" MEANS ANY TAX, LEVY, IMPOST, DUTY OR OTHER CHARGE OR WITHHOLDING OF A
SIMILAR NATURE (INCLUDING ANY RELATED PENALTY OR INTEREST).
(N)
"TRADING DAY" MEANS (A) ANY DAY ON WHICH THE COMMON STOCK IS LISTED OR
QUOTED AND TRADED ON ITS PRIMARY TRADING MARKET, (B) IF THE COMMON STOCK IS NOT
THEN LISTED OR QUOTED AND TRADED ON ANY ELIGIBLE MARKET, THEN A DAY ON WHICH
TRADING OCCURS ON THE NASDAQ GLOBAL MARKET (OR ANY SUCCESSOR THERETO), OR (C) IF
TRADING CEASES TO OCCUR ON THE NASDAQ GLOBAL MARKET (OR ANY SUCCESSOR THERETO),
ANY BUSINESS DAY.
(O)
"VOTING SHARES" OF A PERSON MEANS CAPITAL