Common use of Acquisitions of Common Stock Clause in Contracts

Acquisitions of Common Stock. (a) From and after the Initial Closing, without the prior approval of the Unaffiliated Board, the Investor shall not, and shall cause its affiliates not to, purchase or otherwise acquire, directly or indirectly, beneficial ownership of any shares of Company Common Stock if, after giving effect to any such acquisition, the number of shares of Company Common Stock beneficially owned by the Investor would exceed 49% of the aggregate number of shares of Company Common Stock then outstanding. Notwithstanding the foregoing, this Section 4.01 shall not restrict the acquisition by the Investor or its affiliates of any securities of the Company (i) by way of stock splits, stock dividends, reclassifications, recapitalizations, or other distributions by the Company to holders of the Company Common Stock, or (ii) pursuant to the acquisition of Company Common Stock or other securities as permitted or contemplated by the Related Agreements, including upon the exercise of Rights issued in accordance with the Securities Purchase Agreement and the acquisition of any New Securities pursuant to Section 4.02. Any shares of Company Common Stock acquired by the Investor from third parties after the date hereof, to the extent, and for so long as, such shares result in the Investor beneficially owning in excess of the Percentage Limit of all shares of Company Common Stock then outstanding, are referred to herein as “Restricted Shares”. For the avoidance of doubt, no shares of Common Stock that were Unrestricted Shares shall become Restricted Shares upon and as a result of the acquisition by the Investor or its affiliates of additional shares of Company Common Stock as contemplated by the second sentence of this Section 4.01(a). “Percentage Limit” shall mean 40%; provided, that if, as a result of any acquisition by the Investor or its affiliates of additional shares of Company Common Stock or other securities as contemplated by the second sentence of this Section 4.01(a), the Investor’s percentage ownership (excluding any shares that are Restricted Shares immediately prior to such acquisition) of all the outstanding shares of Company Common Stock would exceed 40%, then the Percentage Limit shall be such percentage ownership.

Acquisitions of Common Stock. (a) From and after Until the Initial ClosingStandstill Expiration Date, without the prior approval of a majority of the Unaffiliated BoardBoard of Directors (excluding the Stockholder Directors), the Investor Stockholder shall not, and nor shall cause it permit its affiliates not tocontrolled or controlling Affiliates or General Partners to purchase, purchase in the aggregate, or otherwise acquire, offer to acquire or agree to acquire, directly or indirectly, beneficial ownership of any shares of Company Common Stock ifor any other Equity Security of the Company such that, after giving effect to any such acquisitionacquisition and the exercise, conversion or exchange of any Equity Security of the number Company, Stockholder would be the beneficial owner of shares in excess of Company Common Stock beneficially owned by the Investor would exceed 4935.5% of the aggregate number of shares of outstanding Company Common Stock then outstanding. Notwithstanding Stock, assuming the foregoingexercise, conversion and exchange of all Equity Securities of the Company, which are not Company Common Stock; provided, however, the following shall not constitute a breach of this Section 4.01 shall not restrict the acquisition by the Investor or its affiliates of any securities of the Company 5.01: (ix) by way of stock splits, pursuant to stock dividends, reclassifications, recapitalizations, recapitalizations or other distributions by the Company to all holders of the Company Common Stock, (y) the purchase of any Equity Securities of the Company by Stockholder pursuant to Section 4.01 and (z) the increase of Stockholder’s beneficial ownership resulting from stock repurchases or redemptions by the Company. For purposes of such calculation, Stockholder shall not be deemed to beneficially own, and the following shall not count toward or result in a breach of, the 3 5.5% limitation: (i) the Series B Warrants and any Company Common Stock received or acquired, or that may be received or acquired, by Stockholder pursuant to the exercise of the Series B Warrants in accordance with their terms, (ii) any Convertible Notes and any Company Common Stock received or acquired, or that may be received or acquired, by Stockholder or its Affiliates pursuant to the acquisition conversion of the Convertible Notes and (iii) any Equity Securities of the Company received by Stockholder as a dividend under the Convertible Preferred Articles Supplementary. Stockholder represents that Schedule II sets forth, as of the date of this Agreement, Stockholder’s beneficial ownership of Equity Securities of the Company, including Company Common Stock, Convertible Preferred Stock or other securities as permitted or contemplated by the Related Agreements, including upon the exercise of Rights issued in accordance with the Securities Purchase Agreement and the acquisition of any New Securities pursuant to Section 4.02. Any shares of Company Common Stock acquired by the Investor from third parties after the date hereof, to the extent, and for so long as, such shares result in the Investor beneficially owning in excess of the Percentage Limit of all shares of Company Common Stock then outstanding, are referred to herein as “Restricted Shares”. For the avoidance of doubt, no shares of Common Stock that were Unrestricted Shares shall become Restricted Shares upon and as a result of the acquisition by the Investor or its affiliates of additional shares of Company Common Stock as contemplated by the second sentence of this Section 4.01(a). “Percentage Limit” shall mean 40%; provided, that if, as a result of any acquisition by the Investor or its affiliates of additional shares of Company Common Stock or other securities as contemplated by the second sentence of this Section 4.01(a), the Investor’s percentage ownership (excluding any shares that are Restricted Shares immediately prior to such acquisition) of all the outstanding shares of Company Common Stock would exceed 40%, then the Percentage Limit shall be such percentage ownershipSeries B Warrants.

Acquisitions of Common Stock. (a) From and after Neither the Initial Closing, without the prior approval Company ---------------------------- nor any of the Unaffiliated Board, the Investor its subsidiaries shall not, and shall cause its affiliates not to, purchase or otherwise acquire, directly or indirectly, beneficial ownership of acquire any outstanding shares of Company Common Stock if, after giving effect to in any such acquisition, the number transaction or series of shares of Company Common Stock beneficially owned transactions (other than purchases contemplated by the Investor would exceed 49% of the aggregate number of shares of Company Common Stock then outstanding. Notwithstanding the foregoing, this Section 4.01 shall not restrict the acquisition by the Investor or its affiliates of any securities of the Company 3.1(b)) unless (i) by way of stock splitsthe Company has reasonably determined, stock dividends, reclassifications, recapitalizations, or other distributions based on public filings by the Company to holders Stockholder and any written advice received from the Stockholder regarding its ownership of Common Stock, that such transaction or series of transactions could not result in the Stockholder becoming the owner of 45% or more of the Company outstanding shares of Common Stock, or (ii) pursuant at least 10 days prior to any such transaction or the commencement of such series of transactions, the Company shall have delivered to the Stockholder a notice setting forth the anticipated acquisition price per share of Company Common Stock (if such acquisition is anticipated to be made other than on the New York Stock Exchange (or other securities as permitted or contemplated by exchange on which the Related AgreementsCommon Stock then trades)), including upon the exercise number of Rights issued in accordance with the Securities Purchase Agreement and the acquisition of any New Securities pursuant to Section 4.02. Any shares of Company Common Stock intended to be acquired by the Investor from third parties after Company, the date hereof, to the extent, and for so long as, such shares result in the Investor beneficially owning in excess number of the Percentage Limit of all shares of Company Common Stock then outstanding, are referred to herein as “Restricted Shares”and any other material terms and conditions of the proposed acquisition. For If upon receipt of such notice the avoidance Stockholder determines, in its sole discretion, that the Company's proposed transaction or series of doubt, no transactions might result in the Stockholder owning in the aggregate more than exactly half of the Company's then outstanding shares of Common Stock and could compel the Stockholder to report the Company on a consolidated basis in its consolidated financial statements in accordance with generally accepted accounting principles, the Stockholder shall give written notice of such determination to the Company within 5 days after receipt of the Company's notice of the proposed transaction or, series of transactions. In such event: (1) with respect to open market purchases, (i) the Company shall notify the Stockholder of each such purchase on the day it is made and of any other changes in the number of then outstanding shares of Common Stock, (ii) the Stockholder shall have two business days to notify the Company that were Unrestricted Shares it elects to require the Company to purchase from the Stockholder for cash such number of shares as, in the reasonable judgment of the Stockholder, will prevent the Stockholder from owning more than exactly half of the outstanding shares of Common Stock, (iii) the price per share for such purchase shall become Restricted Shares upon be the average of the high and low trading prices of the Common Stock on the New York Stock Exchange (or, if not traded on the New York Stock Exchange, on the principal national securities exchange or quotation system on which the Common Stock is traded) on the date of such notification, and (iv) the acquisition of such number of shares from the Stockholder shall occur on the settlement date for the shares purchased by the Company in the open market; and (2) with respect to privately negotiated purchases, (i) the Company shall notify the Stockholder of the proposed purchase and any changes in the number of then outstanding shares of Common Stock at least three business days prior to such purchase, (ii) the Stockholder shall have two business days to notify the Company that it elects to require the Company to purchase from the Stockholder for cash such number of shares as, in the reasonable judgment of the Stockholder, will prevent the Stockholder from owning more than exactly half of the outstanding shares of Common Stock, and (iii) such purchase from the Stockholder shall be on the same day, and at the same price (or value) per share, as the privately negotiated purchase. This Section 3.2(a) shall not apply to an Issuer Tender Offer. (b) If the Company intends to commence an Issuer Tender Offer, it shall so notify the Stockholder not less than 10 days in advance of such proposed Issuer Tender Offer and the proposed terms thereof, and the Company shall not commence any Issuer Tender Offer unless the Company and the Stockholder have agreed on procedures, reasonably satisfactory to the Stockholder, that will prevent the Stockholder from owning more than exactly half of the outstanding shares of Common Stock as a result of such Issuer Tender Offer. (c) If the acquisition by Stockholder gives written notice to the Investor or its affiliates Company that it intends to purchase an estimated number of additional shares of Common Stock, (i) for a six-month period commencing on the earlier of (x) the date the Stockholder gives notice to the Company that it has completed such purchases of Common Stock as contemplated by and (y) the second sentence 45th day after the date of this Section 4.01(a). “Percentage Limit” such notice to the Company, the Company shall mean 40%; provided, that if, as a result of not repurchase any acquisition by the Investor or its affiliates of additional shares of Company Common Stock or other securities as contemplated by if such repurchase would cause the second sentence of this Section 4.01(a), the Investor’s Stockholder's percentage ownership (excluding any shares that are Restricted Shares immediately prior after giving effect to the estimated purchases by the Stockholder set forth in such acquisitionnotice) of all the then outstanding shares of Company Common Stock would exceed 40%, then to be greater than half and (ii) the Percentage Limit Stockholder shall be give written notice to the Company after it completes the repurchases referred to in its initial notice with respect to such percentage ownershippurchases.

Acquisitions of Common Stock. (a) From and after Until the Initial ClosingStandstill Expiration Date, without the prior approval of a majority of the Unaffiliated BoardBoard of Directors (excluding the Stockholder Directors), the Investor Stockholder shall not, and nor shall cause it permit its affiliates not tocontrolled or controlling Affiliates or General Partners to purchase, purchase in the aggregate, or otherwise acquire, offer to acquire or agree to acquire, directly or indirectly, beneficial ownership of any shares of Company Common Stock ifor any other Equity Security of the Company such that, after giving effect to any such acquisitionacquisition and the exercise, conversion or exchange of any Equity Security of the number Company, Stockholder would be the beneficial owner of shares in excess of Company Common Stock beneficially owned by the Investor would exceed 4935.5% of the aggregate number of shares of outstanding Company Common Stock then outstanding. Notwithstanding Stock, assuming the foregoingexercise, conversion and exchange of all Equity Securities of the Company, which are not Company Common Stock; provided, however, the following shall not constitute a breach of this Section 4.01 shall not restrict the acquisition by the Investor or its affiliates of any securities of the Company 5.01: (ix) by way of stock splits, pursuant to stock dividends, reclassifications, recapitalizations, recapitalizations or other distributions by the Company to all holders of the Company Common Stock, (y) the purchase of any Equity Securities of the Company by Stockholder pursuant to Section 4.01 and (z) the increase of Stockholder’s beneficial ownership resulting from stock repurchases or redemptions by the Company. For purposes of such calculation, Stockholder shall not be deemed to beneficially own, and the following shall not count toward or result in a breach of, the 35.5% limitation: (i) the Series B Warrants and any Company Common Stock received or acquired, or that may be received or acquired, by Stockholder pursuant to the exercise of the Series B Warrants in accordance with their terms, (ii) any Convertible Notes and any Company Common Stock received or acquired, or that may be received or acquired, by Stockholder or its Affiliates pursuant to the acquisition conversion of the Convertible Notes and (iii) any Equity Securities of the Company received by Stockholder as a dividend under the Convertible Preferred Articles Supplementary. Stockholder represents that Schedule II sets forth, as of the date of this Agreement, Stockholder’s beneficial ownership of Equity Securities of the Company, including Company Common Stock, Convertible Preferred Stock or other securities as permitted or contemplated by the Related Agreements, including upon the exercise of Rights issued in accordance with the Securities Purchase Agreement and the acquisition of any New Securities pursuant to Section 4.02. Any shares of Company Common Stock acquired by the Investor from third parties after the date hereof, to the extent, and for so long as, such shares result in the Investor beneficially owning in excess of the Percentage Limit of all shares of Company Common Stock then outstanding, are referred to herein as “Restricted Shares”. For the avoidance of doubt, no shares of Common Stock that were Unrestricted Shares shall become Restricted Shares upon and as a result of the acquisition by the Investor or its affiliates of additional shares of Company Common Stock as contemplated by the second sentence of this Section 4.01(a). “Percentage Limit” shall mean 40%; provided, that if, as a result of any acquisition by the Investor or its affiliates of additional shares of Company Common Stock or other securities as contemplated by the second sentence of this Section 4.01(a), the Investor’s percentage ownership (excluding any shares that are Restricted Shares immediately prior to such acquisition) of all the outstanding shares of Company Common Stock would exceed 40%, then the Percentage Limit shall be such percentage ownershipSeries B Warrants.