Common use of Issuance or Sale of Common Stock Clause in Contracts

Issuance or Sale of Common Stock. Neither the Company nor any of its Subsidiaries shall have issued or sold any shares of Common Stock (or securities, warrants or options that are convertible into or exchangeable or exercisable for, or linked to the performance of, Common Stock) (other than (A) pursuant to the Equity Exchange, (B) the issuance of shares pursuant to the exercise of employee stock options issued pursuant to the Company Option Plans, (C) as set forth on Section 7.1(u) of the Company Disclosure Letter or (D) the issuance of shares to existing holders of Common Stock and the Backstop Investors, in each case, pursuant to Section 6.9), unless (1) the purchase price (or, in the case of securities that are convertible into or exchangeable or exercisable for, or linked to the performance of, Common Stock, the conversion, exchange or exercise price) shall not be less than $10.00 per share (net of all underwriting and other discounts, fees and any other compensation; provided, that for purposes hereof, payments to the Purchasers or the Fairholme Purchasers in accordance with Section 1.4 of this Agreement or the Fairholme Agreement, respectively, shall not be considered a discount, fee or other compensation), (2) following such issuance or sale, (x) no Person (other than (i) an Initial Investor and their respective Affiliates pursuant to the Investment Agreements and (ii) any institutional underwriter or initial purchaser acting in an underwriter capacity in an underwritten offering) shall, after giving effect to such issuance or sale, beneficially own more than 10% of the Common Stock of the Company on a Fully Diluted Basis, and (y) no four Persons (other than the Purchasers, members of the Pershing Purchaser Group, the members of the Fairholme Purchaser Group, the Brookfield Consortium Members or the Brookfield Investor) shall, after giving effect to such issuance or sale, beneficially own more than thirty percent (30%) of the Common Stock on a Fully Diluted Basis; provided, that this clause (2) shall not be applicable to any conversion or exchange of claims against the Debtors into New Common Stock pursuant to the Plan; provided, further, that subclause (y) of this clause (2) shall not be applicable with respect to any Person listed on Exhibit N and (3) each Purchaser shall have been offered the right to purchase up to its GGP Pro Rata Share of 15% of such shares of Common Stock (or securities, warrants or options that are convertible into or exchangeable or exercisable for Common Stock) on terms otherwise consistent with Section 5.9 (except the provisions of such Section 5.9 with respect to issuances contemplated by this Section 7.1(u) shall apply from the date of this Agreement) (provided that the right described in this clause (3) shall not be applicable to the issuance of shares or warrants contemplated by the other Investment Agreements, or any conversion or exchange of debt or other claims into equity in connection with the Plan).

Issuance or Sale of Common Stock. Neither the Company nor any of its Subsidiaries shall have issued or sold any shares of Common Stock (or securities, warrants or options that are convertible into or exchangeable or exercisable for, or linked to the performance of, Common Stock) (other than (A) pursuant to the Equity Exchange, (B) the issuance of shares pursuant to the exercise of employee stock options issued pursuant to the Company Option Plans, Plans or (C) as set forth on Section 7.1(u) of the Company Disclosure Letter or (D) the issuance of shares to existing holders of Common Stock and the Backstop Investors, in each case, pursuant to Section 6.9Letter), unless (1) the purchase price (or, in the case of securities that are convertible into or exchangeable or exercisable for, or linked to the performance of, Common Stock, the conversion, exchange or exercise price) shall not be less than $10.00 per share (net of all underwriting and other discounts, fees and any other compensation; provided, that for purposes hereof, payments to the Purchasers or the Fairholme Purchasers in accordance with Section 1.4 of this Agreement or the Fairholme Agreement, respectively, shall not be considered a discount, fee or other compensation), (2) following such issuance or sale, (x) no Person (other than (i) an the other Initial Investor and their respective Affiliates Investors pursuant to the other Investment Agreements and (ii) any institutional underwriter or initial purchaser acting in an underwriter capacity in an underwritten offering) shall, after giving effect to such issuance or sale, sale would beneficially own more than 10% of the Common Stock of the Company on a Fully Diluted Basis, and (y) no four five Persons (other than the Purchasers, the members of the Pershing Purchaser Group, the members of the Fairholme Purchaser Group, the Brookfield Consortium Members or the Brookfield Investor) shall, after giving effect to such issuance or sale, beneficially own more than thirty percent (30%) of the Common Stock on a Fully Diluted Basis; provided, that this clause (2) shall not be applicable to any conversion or exchange of claims against the Debtors into New Common Stock pursuant to the Plan; provided, further, that subclause (y) of this clause (2) shall not be applicable with respect to any Person listed on Exhibit N and (3) each Purchaser shall have been offered the right to purchase up to its GGP Pro Rata Share of 15% of such shares of Common Stock (or securities, warrants or options that are convertible into or exchangeable or exercisable for Common Stock) on terms otherwise consistent with Section 5.9 (except the provisions of such Section 5.9 with respect to issuances contemplated by this Section 7.1(u) shall apply from the date of this Agreement) (provided provided, that the right described in this clause (3) shall not be applicable to the issuance of shares or warrants contemplated by the other Investment Agreements, or any conversion or exchange of debt or other claims into equity in connection with the Plan).

Issuance or Sale of Common Stock. Neither the Company nor any of its Subsidiaries shall have issued or sold any shares of Common Stock (or securities, warrants or options that are convertible into or exchangeable or exercisable for, or linked to the performance of, Common Stock) (other than (A) pursuant to the Equity Exchange, (B) the issuance of shares pursuant to the exercise of employee stock options issued pursuant to the Company Option Plans, (C) as set forth on Section 7.1(u) of the Company Disclosure Letter or (D) the issuance of shares to existing holders of Common Stock and the Backstop Investors, in each case, pursuant to Section 6.9), unless (1) the purchase price (or, in the case of securities that are convertible into or exchangeable or exercisable for, or linked to the performance of, Common Stock, the conversion, exchange or exercise price) shall not be less than $10.00 per share (net of all underwriting and other discounts, fees and any other compensation; provided, that for purposes hereof, payments to the Purchasers Fairholme Investors or the Fairholme Purchasers Pershing Investors in accordance with Section 1.4 of this the Fairholme Agreement or the Fairholme Pershing Agreement, respectively, shall not be considered a discount, fee or other compensation), (2) following such issuance or sale, (x) no Person (other than (i) an Initial Investor Purchaser, Brookfield Consortium Members, the Fairholme/Pershing Investors and their respective Affiliates pursuant to the Investment Agreements and (ii) any institutional underwriter or initial purchaser acting in an underwriter capacity in an underwritten offering) shall, after giving effect to such issuance or sale, beneficially own more than 10% of the Common Stock of the Company on a Fully Diluted Basis, and (y) no four Persons (other than the PurchasersPurchaser, members of the Pershing Purchaser GroupBrookfield Consortium Members, the members of the Fairholme Purchaser Group, the Brookfield Consortium Members or the Brookfield InvestorFairholme/Pershing Investors and their respective Affiliates) shall, after giving effect to such issuance or sale, beneficially own more than thirty percent (30%) of the Common Stock on a Fully Diluted Basis; provided, that this clause (2) shall not be applicable to any conversion or exchange of claims against the Debtors into New Common Stock pursuant to the Plan; provided, further, that subclause (y) of this clause (2) shall not be applicable with respect to any Person listed on Exhibit N and (3) each Purchaser shall have been offered the right to purchase up to its GGP Pro Rata Share of 15% of such shares of Common Stock (or securities, warrants or options that are convertible into or exchangeable or exercisable for Common Stock) on terms otherwise consistent with Section 5.9 (except the provisions of such Section 5.9 with respect to issuances contemplated by this Section 7.1(u) shall apply from the date of this Agreement) (provided that the right described in this clause (3) shall not be applicable to the issuance of shares or warrants contemplated by the other Investment Fairholme/Pershing Agreements, or any conversion or exchange of debt or other claims into equity in connection with the Plan).

Issuance or Sale of Common Stock. Neither the Company nor any of its Subsidiaries shall have issued or sold any shares of Common Stock (or securities, warrants or options that are convertible into or exchangeable or exercisable for, or linked to the performance of, Common Stock) (other than (A) pursuant to the Equity Exchange, (B) the issuance of shares pursuant to the exercise of employee stock options issued pursuant to the Company Option Plans, Plans or (C) as set forth on Section 7.1(u) of the Company Disclosure Letter or (D) the issuance of shares to existing holders of Common Stock and the Backstop Investors, in each case, pursuant to Section 6.9Letter), unless (1) the purchase price (or, in the case of securities that are convertible into or exchangeable or exercisable for, or linked to the performance of, Common Stock, the conversion, exchange or exercise price) shall not be less than $10.00 per share (net of all underwriting and other discounts, fees and any other compensation; provided, that for purposes hereof, payments to the Purchasers or the Fairholme Purchasers in accordance with Section 1.4 of this Agreement or the Fairholme Agreement, respectively, shall not be considered a discount, fee or other compensation), (2) following such issuance or sale, (x) no Person (other than (i) an the other Initial Investor and their respective Affiliates Investors pursuant to the other Investment Agreements and (ii) any institutional underwriter or initial purchaser acting in an underwriter capacity in an underwritten offering) shall, after giving effect to such issuance or sale, beneficially own owns more than 10% of the Common Stock of the Company on a Fully Diluted Basis, and (y) no four five Persons (other than the Purchasers, the members of the Pershing Purchaser Group, the members of the Fairholme Purchaser Group, the Brookfield Consortium Members or the Brookfield Investor) shall, after giving effect to such issuance or sale, beneficially own more than thirty percent (30%) of the Common Stock on a Fully Diluted Basis; provided, that this clause (2) shall not be applicable to any conversion or exchange of claims against the Debtors into New Common Stock pursuant to the Plan; provided, further, that subclause (y) of this clause (2) shall not be applicable with respect to any Person listed on Exhibit N and (3) each Purchaser shall have been offered the right to purchase up to its GGP Pro Rata Share of 15% of such shares of Common Stock (or securities, warrants or options that are convertible into or exchangeable or exercisable for Common Stock) on terms otherwise consistent with Section 5.9 (except the provisions of such Section 5.9 with respect to issuances contemplated by this Section 7.1(u) shall apply from the date of this Agreement) (provided provided, that the right described in this clause (3) shall not be applicable to the issuance of shares or warrants contemplated by the other Investment Agreements, or any conversion or exchange of debt or other claims into equity in connection with the Plan).

Issuance or Sale of Common Stock. Neither the Company nor any of its Subsidiaries shall have issued or sold any shares of Common Stock (or securities, warrants or options that are convertible into or exchangeable or exercisable for, or linked to the performance of, Common Stock) (other than (A) pursuant to the Equity Exchange, (B) the issuance of shares pursuant to the exercise of employee stock options issued pursuant to the Company Option Plans, (C) as set forth on Section 7.1(u) of the Company Disclosure Letter or (D) the issuance of shares to existing holders of Common Stock Stock, the Brookfield Investor and the Backstop InvestorsPershing Purchasers, in each case, pursuant to Section 6.96.9 of the other Investment Agreements), unless (1) the purchase price (or, in the case of securities that are convertible into or exchangeable or exercisable for, or linked to the performance of, Common Stock, the conversion, exchange or exercise price) shall not be less than $10.00 per share (net of all underwriting and other discounts, fees and any other compensation; provided, that for purposes hereof, payments to the Purchasers or the Fairholme Pershing Purchasers in accordance with Section 1.4 of this Agreement or the Fairholme Pershing Agreement, respectively, shall not be considered a discount, fee or other compensation), (2) following such issuance or sale, (x) no Person (other than (i) an Initial Investor and their respective Affiliates pursuant to the Investment Agreements and (ii) any institutional underwriter or initial purchaser acting in an underwriter capacity in an underwritten offering) shall, after giving effect to such issuance or sale, beneficially own more than 10% of the Common Stock of the Company on a Fully Diluted Basis, and (y) no four Persons (other than the Purchasers, members of the Pershing Fairholme Purchaser Group, the members of the Fairholme Pershing Purchaser Group, the Brookfield Consortium Members or the Brookfield Investor) shall, after giving effect to such issuance or sale, beneficially own more than thirty percent (30%) of the Common Stock on a Fully Diluted Basis; provided, that this clause (2) shall not be applicable to any conversion or exchange of claims against the Debtors into New Common Stock pursuant to the Plan; provided, further, that subclause (y) of this clause (2) shall not be applicable with respect to any Person listed on Exhibit N and (3) each Purchaser shall have been offered the right to purchase up to its GGP Pro Rata Share of 15% of such shares of Common Stock (or securities, warrants or options that are convertible into or exchangeable or exercisable for Common Stock) on terms otherwise consistent with Section 5.9 (except the provisions of such Section 5.9 with respect to issuances contemplated by this Section 7.1(u) shall apply from the date of this Agreement) (provided that the right described in this clause (3) shall not be applicable to the issuance of shares or warrants contemplated by the other Investment Agreements, or any conversion or exchange of debt or other claims into equity in connection with the Plan).

Issuance or Sale of Common Stock. Neither the Company nor any of its Subsidiaries shall have issued or sold any shares of Common Stock (or securities, warrants or options that are convertible into or exchangeable or exercisable for, or linked to the performance of, Common Stock) (other than (A) pursuant to the Equity Exchange, (B) the issuance of shares pursuant to the exercise of employee stock options issued pursuant to the Company Option Plans, Plans or (C) as set forth on Section 7.1(u) of the Company Disclosure Letter or (D) the issuance of shares to existing holders of Common Stock and the Backstop Investors, in each case, pursuant to Section 6.9Letter), unless (1) the purchase price (or, in the case of securities that are convertible into or exchangeable or exercisable for, or linked to the performance of, Common Stock, the conversion, exchange or exercise price) shall not be less than $10.00 per share (net of all underwriting and other discounts, fees and any other compensation; provided, that for purposes hereof, payments to the Purchasers or the Fairholme Purchasers in accordance with Section 1.4 of this Agreement or the Fairholme Agreement, respectively, shall not be considered a discount, fee or other compensation), (2) following such issuance or sale, (x) no Person (other than (i) an Initial Investor and their respective Affiliates the Fairholme/Pershing Investors pursuant to the Investment Fairholme/Pershing Agreements and (ii) any institutional underwriter or initial purchaser acting in an underwriter capacity in an underwritten offering) shall, after giving effect to such issuance or sale, beneficially own more than 10% of the Common Stock of the Company on a Fully Diluted Basis, and (y) no four five Persons (other than the PurchasersPurchaser, members of the Pershing Purchaser Group, the members of the Fairholme Purchaser Group, the Brookfield Consortium Members or Members, and the Brookfield InvestorFairholme/Pershing Investors) shall, after giving effect to such issuance or sale, beneficially own more than thirty percent (30%) of the Common Stock on a Fully Diluted Basis; provided, that this clause (2) shall not be applicable to any conversion or exchange of claims against the Debtors into New Common Stock pursuant to the Plan; provided, further, that subclause (y) of this clause (2) shall not be applicable with respect to any Person listed on Exhibit N and (3) each Purchaser shall have been offered the right to purchase up to its GGP Pro Rata Share of 15% of such shares of Common Stock (or securities, warrants or options that are convertible into or exchangeable or exercisable for Common Stock) on terms otherwise consistent with Section 5.9 (except the provisions of such Section 5.9 with respect to issuances contemplated by this Section 7.1(u) shall apply from the date of this Agreement) (provided that the right described in this clause (3) shall not be applicable to the issuance of shares or warrants contemplated by the other Investment Fairholme/Pershing Agreements, or any conversion or exchange of debt or other claims into equity in connection with the Plan).

Issuance or Sale of Common Stock. Neither the Company nor any of its Subsidiaries shall have issued or sold any shares of Common Stock (or securities, warrants or options that are convertible into or exchangeable or exercisable for, or linked to the performance of, Common Stock) (other than (A) pursuant to the Equity Exchange, (B) the issuance of shares pursuant to the exercise of employee stock options issued pursuant to the Company Option Plans, (C) as set forth on Section 7.1(u) of the Company Disclosure Letter or (D) the issuance of shares to existing holders of Common Stock and the Backstop Initial Investors, in each case, pursuant to Section 6.96.9(b)), unless (1) the purchase price (or, in the case of securities that are convertible into or exchangeable or exercisable for, or linked to the performance of, Common Stock, the conversion, exchange or exercise price) shall not be less than $10.00 per share (net of all underwriting and other discounts, fees and any other compensation; provided, that for purposes hereof, payments to the Purchasers or the Fairholme Purchasers in accordance with Section 1.4 of this Agreement or the Fairholme Agreement, respectively, shall not be considered a discount, fee or other compensation), (2) following such issuance or sale, (x) no Person (other than (i) an Initial Investor Purchaser, Brookfield Consortium Members, the Fairholme/Pershing Investors and their respective Affiliates pursuant to the Investment Agreements and (ii) any institutional underwriter or initial purchaser acting in an underwriter capacity in an underwritten offering) shall, after giving effect to such issuance or sale, beneficially own more than 10% of the Common Stock of the Company on a Fully Diluted Basis, and (y) no four Persons (other than the PurchasersPurchaser, members of the Pershing Purchaser GroupBrookfield Consortium Members, the members of the Fairholme Purchaser Group, the Brookfield Consortium Members or the Brookfield InvestorFairholme/Pershing Investors and their respective Affiliates) shall, after giving effect to such issuance or sale, beneficially own more than thirty percent (30%) of the Common Stock on a Fully Diluted Basis; provided, that this clause (2) shall not be applicable to any conversion or exchange of claims against the Debtors into New Common Stock pursuant to the Plan; provided, further, that subclause (y) of this clause (2) shall not be applicable with respect to any Person listed on Exhibit N and (3) each Purchaser shall have been offered the right to purchase up to its GGP Pro Rata Share of 15% of such shares of Common Stock (or securities, warrants or options that are convertible into or exchangeable or exercisable for Common Stock) on terms otherwise consistent with Section 5.9 (except the provisions of such Section 5.9 with respect to issuances contemplated by this Section 7.1(u) shall apply from the date of this Agreement) (provided that the right described in this clause (3) shall not be applicable to the issuance of shares or warrants contemplated by the other Investment Fairholme/Pershing Agreements, or any conversion or exchange of debt or other claims into equity in connection with the Plan).”

Issuance or Sale of Common Stock. Neither the Company nor any of its Subsidiaries shall have issued or sold any shares of Common Stock (or securities, warrants or options that are convertible into or exchangeable or exercisable for, or linked to the performance of, Common Stock) (other than (A) pursuant to the Equity Exchange, (B) the issuance of shares pursuant to the exercise of employee stock options issued pursuant to the Company Option Plans, (C) as set forth on Section 7.1(u) of the Company Disclosure Letter or (D) the issuance of shares to existing holders of Common Stock and the Backstop Investors, in each case, pursuant to Section 6.96.9(b)), unless (1) the purchase price (or, in the case of securities that are convertible into or exchangeable or exercisable for, or linked to the performance of, Common Stock, the conversion, exchange or exercise price) shall not be less than $10.00 per share (net of all underwriting and other discounts, fees and any other compensation; provided, that for purposes hereof, payments to the Purchasers or the Fairholme Purchasers in accordance with Section 1.4 of this Agreement or the Fairholme Agreement, respectively, shall not be considered a discount, fee or other compensation), (2) following such issuance or sale, (x) no Person (other than (i) an Initial Investor and their respective Affiliates pursuant to the Investment Agreements and (ii) any institutional underwriter or initial purchaser acting in an underwriter capacity in an underwritten offering) shall, after giving effect to such issuance or sale, beneficially own more than 10% of the Common Stock of the Company on a Fully Diluted Basis, and (y) no four Persons (other than the Purchasers, members of the Pershing Purchaser Group, the members of the Fairholme Purchaser Group, the Brookfield Consortium Members or the Brookfield Investor) shall, after giving effect to such issuance or sale, beneficially own more than thirty percent (30%) of the Common Stock on a Fully Diluted Basis; provided, that this clause (2) shall not be applicable to any conversion or exchange of claims against the Debtors into New Common Stock pursuant to the Plan; provided, further, that subclause (y) of this clause (2) shall not be applicable with respect to any Person listed on Exhibit N and (3) each Purchaser shall have been offered the right to purchase up to its GGP Pro Rata Share of 15% of such shares of Common Stock (or securities, warrants or options that are convertible into or exchangeable or exercisable for Common Stock) on terms otherwise consistent with Section 5.9 (except the provisions of such Section 5.9 with respect to issuances contemplated by this Section 7.1(u) shall apply from the date of this Agreement) (provided that the right described in this clause (3) shall not be applicable to the issuance of shares or warrants contemplated by the other Investment Agreements, or any conversion or exchange of debt or other claims into equity in connection with the Plan).”

Issuance or Sale of Common Stock. Neither the Company nor any of its Subsidiaries shall have issued or sold any shares of Common Stock (or securities, warrants or options that are convertible into or exchangeable or exercisable for, or linked to the performance of, Common Stock) (other than (A) pursuant to the Equity Exchange, (B) the issuance of shares pursuant to the exercise of employee stock options issued pursuant to the Company Option Plans, (C) as set forth on Section 7.1(u) of the Company Disclosure Letter or (D) the issuance of shares to existing holders of Common Stock and the Backstop Initial Investors, in each case, pursuant to Section 6.96.9(b)), unless (1) the purchase price (or, in the case of securities that are convertible into or exchangeable or exercisable for, or linked to the performance of, Common Stock, the conversion, exchange or exercise price) shall not be less than $10.00 per share (net of all underwriting and other discounts, fees and any other compensation; provided, that for purposes hereof, payments to the Purchasers or the Fairholme Purchasers in accordance with Section 1.4 of this Agreement or the Fairholme Agreement, respectively, shall not be considered a discount, fee or other compensation), (2) following such issuance or sale, (x) no Person (other than (i) an Initial Investor Purchaser, Brookfield Consortium Members, the Fairholme/Pershing Investors and their respective Affiliates pursuant to the Investment Agreements and (ii) any institutional underwriter or initial purchaser acting in an underwriter capacity in an underwritten offering) shall, after giving effect to such issuance or sale, beneficially own more than 10% of the Common Stock of the Company on a Fully Diluted Basis, and (y) no four Persons (other than the PurchasersPurchaser, members of the Pershing Purchaser GroupBrookfield Consortium Members, the members of the Fairholme Purchaser Group, the Brookfield Consortium Members or the Brookfield InvestorFairholme/Pershing Investors and their respective Affiliates) shall, after giving effect to such issuance or sale, beneficially own more than thirty percent (30%) of the Common Stock on a Fully Diluted Basis; provided, that this clause (2) shall not be applicable to any conversion or exchange of claims against the Debtors into New Common Stock pursuant to the Plan; provided, further, that subclause (y) of this clause (2) shall not be applicable with respect to any Person listed on Exhibit N and (3) each Purchaser shall have been offered the right to purchase up to its GGP Pro Rata Share of 15% of such shares of Common Stock (or securities, warrants or options that are convertible into or exchangeable or exercisable for Common Stock) on terms otherwise consistent with Section 5.9 (except the provisions of such Section 5.9 with respect to issuances contemplated by this Section 7.1(u) shall apply from the date of this Agreement) (provided that the right described in this clause (3) shall not be applicable to the issuance of shares or warrants contemplated by the other Investment Fairholme/Pershing Agreements, or any conversion or exchange of debt or other claims into equity in connection with the Plan).

Issuance or Sale of Common Stock. Neither (a) In case the Company nor Company, at -------------------------------- any of its Subsidiaries time after the Closing Date, shall have issued issue or sold sell any shares of Common Stock (or securitiesDerivative Securities, warrants or options that are convertible into or exchangeable or exercisable for, or linked each Holder shall receive a number of additional Shares equal to the performance of, Common Stock) (other than (A) pursuant to the Equity Exchange, (B) the issuance of shares pursuant to the exercise of employee stock options issued pursuant to the Company Option Plans, (C) as set forth on Section 7.1(u) 13% of the Company Disclosure Letter shares so issued or (D) the issuance of shares to existing holders of Common Stock and the Backstop Investors, in each case, pursuant to Section 6.9), unless (1) the purchase price (or, deemed issued in the case of securities that are convertible into or exchangeable or exercisable forDerivative Securities multiplied by a fraction, or linked to of which the performance of, Common Stock, numerator shall be the conversion, exchange or exercise price) shall not be less than $10.00 per share (net number of all underwriting and other discounts, fees and any other compensation; provided, that for purposes hereof, payments to shares of Registrable Securities held by such Holder at the Purchasers or the Fairholme Purchasers in accordance with Section 1.4 time of this Agreement or the Fairholme Agreement, respectively, shall not be considered a discount, fee or other compensation), (2) following such issuance or sale, (x) no Person (other than (i) an Initial Investor sale and their respective Affiliates pursuant to the Investment Agreements and (ii) any institutional underwriter or initial purchaser acting in an underwriter capacity in an underwritten offering) shall, after giving effect to such issuance or sale, beneficially own more than 10% denominator of the Common Stock of the Company on a Fully Diluted Basis, and (y) no four Persons (other than the Purchasers, members of the Pershing Purchaser Group, the members of the Fairholme Purchaser Group, the Brookfield Consortium Members or the Brookfield Investor) shall, after giving effect to such issuance or sale, beneficially own more than thirty percent (30%) of the Common Stock on a Fully Diluted Basis; provided, that this clause (2) which shall not be applicable to any conversion or exchange of claims against the Debtors into New Common Stock pursuant to the Plan; provided, further, that subclause (y) of this clause (2) 2,250,000 shares. Such adjustment shall not be applicable with respect to any Person listed on Exhibit N and (3) each Purchaser shall have been offered the right to purchase up to its GGP Pro Rata Share of 15% of made whenever such shares of Common Stock are issued or Derivative Securities are granted, as the case may be, and shall become effective immediately after the effective date of such event retroactive to the record date, if any, for such event. (b) The provisions of Section 13.1(a) hereof shall not apply to (i) --------------- shares of Common Stock issued pursuant to this Section 13, (ii) 2,954,171 shares ---------- of Common Stock issued upon the exercise of outstanding stock options under the Company's existing stock option plan, as it may be amended from time to time (the "Stock Option Plan"), such options having been granted prior to the Closing Date, plus all such additional shares of Common Stock as may be issued thereunder by virtue of antidilution provisions, if any, contained in such options or securitiesthe Stock Option Plan, warrants (iii) 1,040,829 shares of Common Stock to be issued upon the exercise of options granted to consultants, employees or officers of the Company or its Subsidiaries pursuant to the Stock Option Plan, all such options that are convertible into or exchangeable or exercisable for Common Stockto have an exercise price no less than fair market value (as defined in the Stock Option Plan) on terms otherwise consistent with Section 5.9 (except the provisions of such Section 5.9 with respect to issuances contemplated by this Section 7.1(u) shall apply from the date of this Agreementgrant, (iv) (provided that up to 501,000 shares of Common Stock issued upon the right described in this clause (3) shall not be applicable exercise of purchase rights granted pursuant to the issuance Company's existing employee stock purchase plan, as it may be amended from time to time (the "Stock Purchase Plan"), all such purchases to be at no less than 85% of fair market value as defined in the Stock Purchase Plan, (v) up to 250,000 shares of Common Stock issued at Fair Market Value (as defined in Section 13.3 hereof) on the date of the issue of such shares for any business ------------ purpose and (vi) shares of Common Stock or warrants contemplated by the other Investment Agreements, or any conversion or exchange of debt or other claims into equity Derivative Securities issued in connection with any bona fide underwritten public offerings. In addition, should outstanding options become available under the Plan).Stock Option Plan due to the bona fide termination of employment by the optionees or the lapse of such options by their terms, such options may be granted as provided in subsection (iii) of this Section 13.1. ------------

Issuance or Sale of Common Stock. Neither At any time after the First Tranche Issue Date, the Company nor shall not issue or sell its Common Stock or any securities exercisable or convertible into shares of its Subsidiaries shall have Common Stock, at a price per share or exercise or conversion price that is both less than the Current Market Price then in effect and less than the Conversion Price then in effect (and in the case of subclauses (ii) or (iii) below, issue or sell Common Stock or any other securities exercisable or convertible into shares of Common Stock, whose purchase price or exercise or conversion price is both less than the Current Market Price then in effect and less than the Conversion Price then in effect), except for (i) the issuance of Common Stock pursuant to the conversion or exercise of convertible or exercisable securities issued or sold outstanding on or prior to the First Tranche Issue Date or the Notes, (ii) the issuance of Common Stock or any other securities exercisable or convertible into shares of Common Stock (or securities, warrants or options that are convertible into or exchangeable or exercisable for, or linked to the performance of, Common Stock) (other than (A) pursuant to the Equity Exchange, (B) the issuance of shares pursuant to the exercise of stock options granted or reserved under the Company’s employee stock options existing on the First Tranche Issue Date or adopted thereafter in the ordinary course of business, or (iii) the issuance, after the First Tranche Issue Date, of Common Stock or any other securities exercisable or convertible into shares of Common Stock issued or granted to third-party consultants or employees of the Company and its Subsidiaries under the Company’s employee stock options plan or pursuant to written contractual arrangements relating to the compensation for the services rendered to the Company Option Plansor its Subsidiaries by such consultants or employees, to the extent that all such shares or securities issued under subclauses (Cii) as set forth on Section 7.1(u) of the Company Disclosure Letter or (Diii) the issuance of shares to existing holders of Common Stock and the Backstop Investors, in each case, pursuant to this Section 6.9), unless (1) the purchase price (or4.24, in the case of securities that are convertible into or exchangeable or exercisable foraggregate, or linked to the performance ofon a cumulative basis and without double counting, Common Stock, the conversion, exchange or exercise pricedo not exceed five percent (5%) shall not be less than $10.00 per share (net of all underwriting and other discounts, fees and any other compensation; provided, that for purposes hereof, payments to the Purchasers or the Fairholme Purchasers in accordance with Section 1.4 of this Agreement or the Fairholme Agreement, respectively, shall not be considered a discount, fee or other compensation), (2) following such issuance or sale, (x) no Person (other than (i) an Initial Investor and their respective Affiliates pursuant to the Investment Agreements and (ii) any institutional underwriter or initial purchaser acting in an underwriter capacity in an underwritten offering) shall, after giving effect to such issuance or sale, beneficially own more than 10% of the Common Stock of the Company issued and outstanding immediately prior to such issuance.” 1.2. Section 15.05(g) of the Indenture shall be deleted in its entirety and replaced with the following (it being noted that additions thereto are being marked with an underline): “On each March 31, June 30, September 30 and December 31 of each year, commencing on a Fully Diluted BasisJune 30, and 2010, the Conversion Rate shall be adjusted to equal the quotient obtained by dividing (yi) $100,000 by (ii) the Trading Reference VWAP (20 Day Backward Looking); provided that no four Persons (other such adjustment shall be made if the number of shares issuable upon conversion of the Notes at such adjusted Conversion Rate would be lower than the Purchasers, members number of the Pershing Purchaser Group, the members of the Fairholme Purchaser Group, the Brookfield Consortium Members or the Brookfield Investor) shall, shares issuable at then existing Conversion Rate (after giving effect to prior adjustments permitted pursuant to this clause); provided further that any adjustment pursuant to this Section 15.05(g) shall be made only to the extent that the number of shares issuable upon conversion of each $100,000 principal amount of the Notes at such issuance or saleadjusted Conversion Rate would not exceed 200,000 shares (without giving effect to adjustments pursuant to this Section 15.05, beneficially own more other than thirty percent (30%this Section 15.05(g) and Section 15.05(i)).” 1.3. Section 15.05(h) of the Common Stock on a Fully Diluted Basis; providedIndenture shall be deleted in its entirely and replaced with the phrase “[Reserved]”, that this clause (2) shall not be applicable and any and all references to Section 15.05(h), whether direct or indirect, in any conversion or exchange of claims against the Debtors into New Common Stock pursuant to the Plan; providedterm, furthercondition, that subclause (y) of this clause (2) shall not be applicable with respect to any Person listed on Exhibit N and (3) each Purchaser shall have been offered the right to purchase up to its GGP Pro Rata Share of 15% of such shares of Common Stock (or securities, warrants or options that are convertible into or exchangeable or exercisable for Common Stock) on terms otherwise consistent with Section 5.9 (except the provisions of such Section 5.9 with respect to issuances contemplated by this Section 7.1(u) shall apply from the date of this Agreement) (provided that the right described in this clause (3) shall not be applicable to the issuance of shares or warrants contemplated by the other Investment Agreements, or any conversion or exchange of debt limitation or other claims into equity provision in connection with the Plan)Indenture, are deleted, and such sections and references shall be of no further force or effect.

Issuance or Sale of Common Stock. Neither the Company nor any of its Subsidiaries shall have issued or sold any shares of Common Stock (or securities, warrants or options that are convertible into or exchangeable or exercisable for, or linked to the performance of, Common Stock) (other than (A) pursuant to the Equity Exchange, (B) the issuance of shares pursuant to the exercise of employee stock options issued pursuant to the Company Option Plans, (C) as set forth on Section 7.1(u) of the Company Disclosure Letter or (D) the issuance of shares to existing holders of Common Stock Stock, the Brookfield Investor and the Backstop InvestorsPershing Purchasers, in each case, pursuant to Section 6.96.9(b) of the other Investment Agreements), unless (1) the purchase price (or, in the case of securities that are convertible into or exchangeable or exercisable for, or linked to the performance of, Common Stock, the conversion, exchange or exercise price) shall not be less than $10.00 per share (net of all underwriting and other discounts, fees and any other compensation; provided, that for purposes hereof, payments to the Purchasers or the Fairholme Purchasers in accordance with Section 1.4 of this Agreement or the Fairholme Agreement, respectively, shall not be considered a discount, fee or other compensation), (2) following such issuance or sale, (x) no Person (other than (i) an Initial Investor and their respective Affiliates pursuant to the Investment Agreements and (ii) any institutional underwriter or initial purchaser acting in an underwriter capacity in an underwritten offering) shall, after giving effect to such issuance or sale, beneficially own more than 10% of the Common Stock of the Company on a Fully Diluted Basis, and (y) no four Persons (other than the Purchasers, members of the Pershing Fairholme Purchaser Group, the members of the Fairholme Pershing Purchaser Group, the Brookfield Consortium Members or the Brookfield Investor) shall, after giving effect to such issuance or sale, beneficially own more than thirty percent (30%) of the Common Stock on a Fully Diluted Basis; provided, that this clause (2) shall not be applicable to any conversion or exchange of claims against the Debtors into New Common Stock pursuant to the Plan; provided, further, that subclause (y) of this clause (2) shall not be applicable with respect to any Person listed on Exhibit N and (3) each Purchaser shall have been offered the right to purchase up to its GGP Pro Rata Share of 15% of such shares of Common Stock (or securities, warrants or options that are convertible into or exchangeable or exercisable for Common Stock) on terms otherwise consistent with Section 5.9 (except the provisions of such Section 5.9 with respect to issuances contemplated by this Section 7.1(u) shall apply from the date of this Agreement) (provided that the right described in this clause (3) shall not be applicable to the issuance of shares or warrants contemplated by the other Investment Agreements, or any conversion or exchange of debt or other claims into equity in connection with the Plan).clause