STATUTORY SHARE EXCHANGE OR SIMILAR TRANSACTION THAT REQUIRES THE APPROVAL OF
THE COMPANY'S STOCKHOLDERS.
(D)
THE TERM "COMPANY MATERIAL ADVERSE EFFECT" MEANS A MATERIAL ADVERSE
EFFECT ON THE BUSINESS, RESULTS OF OPERATION OR FINANCIAL CONDITION OF THE
COMPANY AND ITS CONSOLIDATED SUBSIDIARIES TAKEN AS A WHOLE; PROVIDED, HOWEVER,
THAT COMPANY MATERIAL ADVERSE EFFECT SHALL NOT BE DEEMED TO INCLUDE: (I) THE
EFFECTS OF (A) CHANGES AFTER THE DATE HEREOF IN GENERAL BUSINESS, ECONOMIC OR
MARKET CONDITIONS (INCLUDING CHANGES GENERALLY IN PREVAILING INTEREST RATES,
CREDIT AVAILABILITY AND LIQUIDITY, CURRENCY EXCHANGE RATES AND PRICE LEVELS OR
TRADING VOLUMES IN THE UNITED STATES OR FOREIGN SECURITIES OR CREDIT MARKETS),
OR ANY OUTBREAK OR ESCALATION OF HOSTILITIES, DECLARED OR UNDECLARED ACTS OF WAR
OR TERRORISM, IN EACH CASE GENERALLY AFFECTING THE INDUSTRIES IN WHICH THE
COMPANY AND ITS SUBSIDIARIES OPERATE, (B) CHANGES OR PROPOSED CHANGES AFTER THE
DATE HEREOF IN GAAP OR REGULATORY ACCOUNTING REQUIREMENTS, OR AUTHORITATIVE
INTERPRETATIONS THEREOF, (C) CHANGES OR PROPOSED CHANGES AFTER DATE HEREOF IN
SECURITIES, BANKING AND OTHER LAWS OF GENERAL APPLICABILITY OR RELATED POLICIES
OR INTERPRETATIONS OF GOVERNMENTAL ENTITIES (IN THE CASE OF EACH OF THESE
CLAUSES (A), (B) AND (C), OTHER THAN CHANGES OR OCCURRENCES TO THE EXTENT THAT
SUCH CHANGES OR OCCURRENCES HAVE OR WOULD REASONABLY BE EXPECTED TO HAVE A
MATERIALLY DISPROPORTIONATE ADVERSE EFFECT ON THE COMPANY AND ITS CONSOLIDATED
SUBSIDIARIES TAKEN AS A WHOLE RELATIVE TO COMPARABLE U.S. BANKING OR FINANCIAL
SERVICES ORGANIZATIONS), OR (D) CHANGES IN
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THE MARKET PRICE OR TRADING VOLUME OF THE COMMON STOCK OR ANY OTHER EQUITY,
EQUITY-RELATED OR DEBT SECURITIES OF THE COMPANY OR ITS CONSOLIDATED
SUBSIDIARIES (IT BEING UNDERSTOOD AND AGREED THAT THE EXCEPTION SET FORTH IN
THIS CLAUSE (D) DOES NOT APPLY TO THE UNDERLYING REASON GIVING RISE TO OR
CONTRIBUTING TO ANY SUCH CHANGE); OR (II) THE ABILITY OF THE COMPANY TO
CONSUMMATE THE EXCHANGE AND THE OTHER TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER ON A TIMELY BASIS.
(e)
"Designated Matters" means (i) the election and removal
of directors, (ii) the approval of any Business Combination, (iii) the approval
of a sale of all or substantially all of the assets or property of the Company,
(iv) the approval of a dissolution of the Company, (v) the approval of any
issuance of any securities of the Company on which holders of Common Stock are
entitled to vote, (vi) the approval of any amendment to the Charter or bylaws of
the Company on which holders of Common Stock are entitled to vote and (vii) the
approval of any other matters reasonably incidental to the foregoing subclauses
(i) through (vi) as determined by the Investor.
(f)
The term "EAWA" means the Employ American Workers Act (Section 1611
of Division A, Title XVI of the American Recovery and Reinvestment Act of 2009),
Public Law No. 111-5, effective as of February 17, 2009, as may be amended and
in effect from time to time.
(G)
THE TERM "JUNIOR STOCK" MEANS THE COMMON STOCK AND ANY OTHER