of the Disclosure Schedule to the Investment Agreement and
(ii) any other Subsidiary that is a significant subsidiary of the Company under
Rule 1-02(w) of SEC Regulation S-X.
3
"Subsidiary" or "Subsidiaries" means any and all corporations,
partnerships, limited liability companies, joint ventures, associations and
other entities controlled by the Company, directly or indirectly, as a result of
ownership of equity, membership or similar interests in such Person or any other
related rights.
"Third Party" means, with respect to the Investor, any other Person (other
than the Company or an Affiliate of the Investor) and, with respect to the
Company, any other Person (other than the Investor).
"VWAP" means the volume weighted average of the trading prices of Common
Stock, as such price is reported on the NYSE Composite Transaction Tape (as
reported by Bloomberg Financial Markets or such other source as the parties
shall agree in writing), for the 20 trading days ending on (and including) the
date that is two trading days prior to the Price Determination Date.
Each of the following terms is defined in the Section set forth opposite
such term:
Term
Section
Acquisition Transaction
5.01(b)
Agreement
Preamble
Blackout Period
4.04
Common Stock
Recitals
Company
Preamble
Company Offer
5.06(a)
Company Offer Notice
5.06(a)
Company Offer Period
5.06(b)(i)
Company Offer Price
5.06(a)
Company Offered Shares
5.06(a)
Company Notice of Election
5.06(b)(i)
Counteroffer Period
5.02(a)
Demand Registration
4.01(a)
Demand Registration Statement
4.01(a)
Determination Notice
5.02(a)
Indemnified Party
4.08(d)
Indemnifying Party
4.08(d)
Investment Agreement
Recitals
Investor
Preamble
Investor Offer
5.03(a)
Investor Offer Notice
5.03(a)
Investor Offer Period
5.03(b)(i)
Investor Offer Price
5.03(a)
Investor Offered Shares
5.03(a)
Investor Notice of Election
5.03(b)(i)
Investor Proposal
5.02(a)
Look Period
5.01(a)
Maximum Number of Securities
4.02(c)
Notice of Issuance
5.04(b)
Observer
3.01(a)
Participating Demand Holders
4.01(a)
Participating Piggyback Holders
4.02(b)
Piggyback Registration
4.02(a)
Piggyback Registration Statement
4.02(a)
Shelf Registration
4.01(b)
4
Term
Section
Shelf Registration Statement
4.01(b)
Superior Proposal
5.02(b)
Third Party New Securities
5.04(a)
Third Party Offer
5.02(a)
ARTICLE II
RESTRICTIONS ON TRANSFERABILITY
Section 2.01. General. The Investor understands and agrees that the
Investor Stock has not been registered under the Securities Act and are
restricted securities except pursuant to an effective registration statement
under the Securities Act or pursuant to an applicable exemption from the
registration and prospectus delivery requirements of the Securities Act.
Section 2.02. Restrictive Legend. (a) Each certificate representing the
shares of Investor Stock shall be stamped or otherwise imprinted with a legend
in substantially the following form (in addition to any legends required by
agreement or by applicable state securities Laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND
NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF.
SUCH SHARES GENERALLY MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR OF AN APPLICABLE EXEMPTION FROM THE REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS OF SAID ACT.
(b) The Company shall, at