Common use of Acquisitions of Common Stock Clause in Contracts

Acquisitions of Common Stock. (a) Neither the Company ---------------------------- nor any of its subsidiaries shall purchase or otherwise acquire any outstanding shares of Common Stock in any transaction or series of transactions (other than purchases contemplated by Section 3.1(b)) unless (i) the Company has reasonably determined, based on public filings by the 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 outstanding shares of Common Stock, or (ii) 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 Common Stock (if such acquisition is anticipated to be made other than on the New York Stock Exchange (or other securities exchange on which the Common Stock then trades)), the number of shares of Common Stock intended to be acquired by the Company, the number of shares of Common Stock then outstanding, and any other material terms and conditions of the proposed acquisition. If upon receipt of such notice the Stockholder determines, in its sole discretion, that the Company's proposed transaction or series of 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 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 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.

Acquisitions of Common Stock. (a) Neither From and after the Company ---------------------------- nor any Initial Closing, without the prior approval of the Unaffiliated Board, the Investor shall not, and shall cause its subsidiaries shall affiliates not to, purchase or otherwise acquire acquire, directly or indirectly, beneficial ownership of any outstanding shares of Company Common Stock in if, after giving effect to any transaction 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 series its affiliates of transactions (other than purchases contemplated by Section 3.1(b)) unless any securities of the Company (i) by way of stock splits, stock dividends, reclassifications, recapitalizations, or other distributions by the Company has reasonably determined, based on public filings by the 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 to holders of the outstanding shares of Company Common Stock, or (ii) at least 10 days prior to any such transaction or the commencement of such series of transactions, the Company shall have delivered pursuant 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 exchange on which 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 then trades)), the number of shares of Common Stock intended to be acquired by the CompanyInvestor from third parties after the date hereof, to the number 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, and any other material terms and conditions are referred to herein as “Restricted Shares”. For the avoidance of the proposed acquisition. If upon receipt of such notice the Stockholder determinesdoubt, in its sole discretion, that the Company's proposed transaction or series of transactions might result in the Stockholder owning in the aggregate more than exactly half of the Company's then outstanding no shares of Common Stock that were Unrestricted Shares shall become Restricted Shares upon and could compel as a result of the Stockholder to report acquisition by the Investor or its affiliates of additional shares of Company on Common Stock as contemplated by the second sentence of this Section 4.01(a). “Percentage Limit” shall mean 40%; provided, that if, as a consolidated basis in result of any acquisition by the Investor or its consolidated financial statements in accordance with generally accepted accounting principlesaffiliates of additional shares of Company Common Stock or other securities as contemplated by the second sentence of this Section 4.01(a), the Stockholder shall give written notice Investor’s percentage ownership (excluding any shares that are Restricted Shares immediately prior to such acquisition) 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 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 all the outstanding shares of Company Common StockStock would exceed 40%, (iii) then the price per share for such purchase Percentage Limit shall 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 Offerpercentage ownership.

Acquisitions of Common Stock. Until the Standstill Expiration Date, without the prior approval of a majority of the Board of Directors (a) Neither excluding the Stockholder Directors), Stockholder shall not, nor shall it permit its controlled or controlling Affiliates or General Partners to purchase, in the aggregate, or otherwise acquire, offer to acquire or agree to acquire, directly or indirectly, beneficial ownership of Company Common Stock or any other Equity Security of the Company ---------------------------- nor such that, after giving effect to any such acquisition and the exercise, conversion or exchange of its subsidiaries any Equity Security of the Company, Stockholder would be the beneficial owner of in excess of 35.5% of the outstanding Company Common Stock, assuming the exercise, 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 5.01: (x) pursuant to stock dividends, reclassifications, recapitalizations or other distributions by the Company to all holders of 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 otherwise acquire any outstanding shares redemptions by the Company. For purposes of Common Stock such calculation, Stockholder shall not be deemed to beneficially own, and the following shall not count toward or result in any transaction or series of transactions (other than purchases contemplated by Section 3.1(b)) unless a breach of, the 3 5.5% limitation: (i) the Company has reasonably determined, based on public filings by the Stockholder Series B Warrants and any written advice Company Common Stock received from or acquired, or that may be received or acquired, by Stockholder pursuant to 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 exercise of the outstanding shares of Common Stock, or (ii) 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 Common Stock (if such acquisition is anticipated to be made other than on the New York Stock Exchange (or other securities exchange on which the Common Stock then trades)), the number of shares of Common Stock intended to be acquired by the Company, the number of shares of Common Stock then outstanding, and any other material terms and conditions of the proposed acquisition. If upon receipt of such notice the Stockholder determines, in its sole discretion, that the Company's proposed transaction or series of 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 Series B Warrants 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 Stocktheir 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 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 conversion 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 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, Convertible Notes and (iii) such purchase from any Equity Securities of the Company received by Stockholder shall be on as a dividend under the same day, and at the same price (or value) per shareConvertible Preferred Articles Supplementary. Stockholder represents that Schedule II sets forth, as of the privately negotiated purchase. This Section 3.2(a) shall not apply to an Issuer Tender Offerdate of this Agreement, Stockholder’s beneficial ownership of Equity Securities of the Company, including Company Common Stock, Convertible Preferred Stock and Series B Warrants.

Acquisitions of Common Stock. Until the Standstill Expiration Date, without the prior approval of a majority of the Board of Directors (a) Neither excluding the Stockholder Directors), Stockholder shall not, nor shall it permit its controlled or controlling Affiliates or General Partners to purchase, in the aggregate, or otherwise acquire, offer to acquire or agree to acquire, directly or indirectly, beneficial ownership of Company Common Stock or any other Equity Security of the Company ---------------------------- nor such that, after giving effect to any such acquisition and the exercise, conversion or exchange of its subsidiaries any Equity Security of the Company, Stockholder would be the beneficial owner of in excess of 35.5% of the outstanding Company Common Stock, assuming the 39 exercise, 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 5.01: (x) pursuant to stock dividends, reclassifications, recapitalizations or other distributions by the Company to all holders of 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 otherwise acquire any outstanding shares redemptions by the Company. For purposes of Common Stock such calculation, Stockholder shall not be deemed to beneficially own, and the following shall not count toward or result in any transaction or series of transactions (other than purchases contemplated by Section 3.1(b)) unless a breach of, the 35.5% limitation: (i) the Company has reasonably determined, based on public filings by the Stockholder Series B Warrants and any written advice Company Common Stock received from or acquired, or that may be received or acquired, by Stockholder pursuant to 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 exercise of the outstanding shares of Common Stock, or (ii) 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 Common Stock (if such acquisition is anticipated to be made other than on the New York Stock Exchange (or other securities exchange on which the Common Stock then trades)), the number of shares of Common Stock intended to be acquired by the Company, the number of shares of Common Stock then outstanding, and any other material terms and conditions of the proposed acquisition. If upon receipt of such notice the Stockholder determines, in its sole discretion, that the Company's proposed transaction or series of 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 Series B Warrants 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 Stocktheir 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 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 conversion 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 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, Convertible Notes and (iii) such purchase from any Equity Securities of the Company received by Stockholder shall be on as a dividend under the same day, and at the same price (or value) per shareConvertible Preferred Articles Supplementary. Stockholder represents that Schedule II sets forth, as of the privately negotiated purchase. This Section 3.2(a) shall not apply to an Issuer Tender Offerdate of this Agreement, Stockholder’s beneficial ownership of Equity Securities of the Company, including Company Common Stock, Convertible Preferred Stock and Series B Warrants.