Common use of Limitations & Interpretations Clause in Contracts

Limitations & Interpretations. (i) For purposes of this Section 4.5, if the consideration relating to the issuance or payable upon conversion, exercise or exchange of a security into or for Common Stock consists in whole or in part of property other than cash, the portion of the non-cash consideration shall be computed as the Fair Market Value of such property, as determined in good faith by the Board of Directors of the Company. (ii) For the avoidance of doubt, any adjustment to be made pursuant to this Section 4.5 shall be made on a weighted average rather than a “full-ratchet” basis to give effect to the size and price of the capital stock issued that gives or is to give rise to the anti-dilution protection intended by this Section 4.5. (iii) Any adjustment required by this Section 4.5 shall be made successively whenever any Common Stock, securities convertible into or exercisable or exchangeable for Common Stock or other equity-linked security is issued, and shall become effective immediately after the applicable record date. If at the end of the period during which any such securities convertible into or exercisable or exchangeable for Common Stock or other equity-linked security is exercisable not all such securities shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion or exercise of convertible securities or warrants actually issued). (iv) Except as provided in the previous sentence, if the application of this Section 4.5 shall result in an increase in the Conversion Price, no adjustment shall be made for such issuances of Common Stock, securities convertible into or exercisable or exchangeable for Common Stock or other equity or equity-linked securities. (v) No adjustment shall be made pursuant to this Section 4.5 in connection with issuances or sales by the Company of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock that constitute grants of Permitted Management Stock Options permitted by Section 8.14(b)(iii) or Section 8.14(c)(i).

Limitations & Interpretations. Notwithstanding anything to the contrary in this Indenture (iincluding, without limitation, Section 3.10, this Section 4.05(2), Section 4.06 and Section 4.10), unless the Company shall have received Stockholder Approval, the Conversion Price or Conversion Rate shall not be adjusted beyond the amount that the total number of shares issuable upon conversion of the Notes would exceed 22,008,800 shares (as adjusted for stock splits, reverse stock splits, stock combinations, reclassifications and reorganizations) which represents 19.99% of the Company’s Common Stock outstanding as of the close of the Trading Day immediately preceding the date of the Indenture without shareholder approval or as otherwise required pursuant to the listing requirements of the American Stock Exchange or such other national securities exchange on which the Common Stock is then listed. For purposes of this Section 4.5subsection 4.05(2), if the consideration relating to the issuance of such additional shares of Common Stock, other Capital Stock or payable upon conversion, exercise or exchange of a security into or for Common Stock equity-linked securities consists in whole or in part of property other than cash, the portion of the non-cash consideration shall be computed as the Fair Market Value of such property, as determined in good faith by the Board of Directors of the Company. (ii) . For the avoidance of doubt, any adjustment to be made pursuant to this Section 4.5 4.05(2) shall be made on a weighted average rather than a “full-ratchet” basis to give effect to the size and price of the capital stock issued that gives or is to give rise to the anti-dilution antidilution protection intended by this Section 4.5. (iii) Section, rather than on a so-called “full ratchet basis” or by attributing no consideration to the applicable proceeds raised. Any adjustment required by this Section 4.5 4.05(2) shall be made successively whenever any Common Stock, securities convertible into such equity or exercisable or exchangeable for Common Stock or other equity-linked security is are issued, and shall become effective immediately after the applicable such record date. If at the end of the period during which any such securities convertible into or exercisable or exchangeable for Common Stock or other equity-linked security is are exercisable not all such securities shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion or exercise of convertible securities or warrants actually issued). (iv) Except as provided in . Notwithstanding the previous sentenceforegoing, if the application of this Section 4.5 4.05(2) shall result in an increase in the Conversion Price, no adjustment shall be made for such issuances of Common Stock, securities convertible into or exercisable or exchangeable for Common Stock or other equity or equity-linked securities. (v) No adjustment shall be made pursuant to this Section 4.5 in connection with issuances or sales by the Company of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock that constitute grants of Permitted Management Stock Options permitted by Section 8.14(b)(iii) or Section 8.14(c)(i).