NOL Limitations Clause Samples
NOL Limitations. (a) Notwithstanding any other provision herein to the contrary, the Put Option shall not be exercisable by the Company if the Investor is, or is part of a group of persons that is, not a Five Percent Stockholder (as defined in the Term Sheet) as of the date hereof, to the extent (but only to the extent) such exercise, after taking into account the shares of Additional Common Stock acquired by the Investor pursuant to the Rights Offering and the Second Lien Term Loan Offering and in connection with the payment of the Put Option Premium, would result in the percentage stock ownership of such person or group of persons exceeding 4.9% of the outstanding Common Stock, for purposes of Section 382 of the Internal Revenue Code of 1986, as amended (the “Code”).
(b) To the extent the issuance of shares of Additional Common Stock is reduced pursuant to foregoing provision or pursuant to the provisions set forth in the Term Sheet under “NOL Limitations,” the Firm Commitment Amount shall be reduced accordingly.
NOL Limitations. (a) The Term Sheet is hereby amended by adding the following sentence as a new paragraph at the end of the provisions set forth under “NOL Limitations”: “If the Put Options are exercised prior to June 27, 2008 under the circumstances referred to in clause (c)(ii) under “Conditions Precedent to Put Option Obligations” and, if upon such exercise, there is an “ownership change” for purposes of Section 382 of the Code, then the provisions set forth under “NOL Limitations” shall not apply and shall be of no further force and effect.”
(b) Section 3.3 of each Put Option Agreement is hereby amended by adding the following subsection at the end thereof:
(c) If the Put Option is exercised prior to June 27, 2008 under the circumstances referred to in the Term Sheet in clause (c)(ii) under “Conditions Precedent to Put Option Obligations” and, if upon such exercise, there is an “ownership change” for purposes of Section 382 of the Code, then the provisions of this Section 3.3 shall not apply and shall be of no further force and effect.”