Common use of Total Equity Value Clause in Contracts

Total Equity Value. (a) The Conversion Price for purposes of Section 4.1(c)(ii) shall be the result of a fraction, (x) the numerator of which is the sum of the amounts determined by multiplying the portion of the Total Equity Value allocated to each Tranche by the Tranche C.P. of such Tranche, up to and including the Tranche that includes the Total Equity Value, divided by (y) the Total Equity Value. All calculations of the Conversion Price under this Section 4.3 shall be made to the nearest cent. For greater certainty, the formula is set forth below, and Schedule A to this Note shows the Tranche, Tranche CP and Conversion Price at Total Equity Value ranging from $100,000,000 to $800,000,000. SumProduct (1) (Tranches; Conversion Price) __________________________________________ Total Equity Value (1) Sum Product = Multiply each Tranche by its respective Tranche C.P. and add the totals. (b) At any time that a Conversion Price must be determined, the "Total Equity Value" shall be determined as follows: (i) The Board of Directors shall make a reasonable, good-faith determination of the Total Equity Value in accordance with paragraph (vi) below and shall submit such determination (the "Board Determination") for the approval of the Noteholders. The Total Equity Value shall be deemed to be the amount so determined by the Board if such amount is approved by the Majority Noteholders. (ii) If the Majority Noteholders do not approve the Board Determination, then the Board of Directors, on the one hand, and the Noteholders, on the other hand, shall promptly commence good-faith negotiations to arrive at a joint determination of the Total Equity Value. If the Board and the Majority Noteholders agree to a determination of the Total Equity Value, then the Total Equity Value shall be deemed to be the amount so agreed. (iii) If the Board of Directors and the Majority Noteholders do not arrive at a joint determination of the Total Equity Value within ten days of delivery by the Board of Directors to the Noteholders or by any Noteholder to the Board of Directors, as applicable, of written notice of the occurrence of an event giving rise to conversion or exchange, then no later than the 15th day after delivery of the written notice referenced in this clause (iii), the Board of Directors and the Majority Noteholders shall refer the matter to an independent valuation expert to be selected by mutual consent of the Board of Directors and the Majority Noteholders. If the independent valuation expert shall not have been agreed upon by such 15th day, then each of the Board of Directors and the Majority Noteholders shall, by the twentieth day after delivery of the written notice referenced in this clause (iii) select an independent valuation expert and instruct such expert to agree, no later than the twenty-fifth day following delivery of such notice, with the expert selected by the other party on a third independent valuation expert which shall perform the valuation hereunder. If any party shall fail to select an independent valuation expert and to instruct such expert as required by the immediately preceding sentence, then the independent valuation expert shall be the independent valuation expert selected by the other party. The determination of the independent valuation expert as provided in this clause (iii) shall be final and binding on the Company and the Holder and all fees and expenses of such expert shall be borne by the Company. (iv) If the circumstance giving rise to a right of conversion by Noteholders or exchange by the Company is a Liquidity Event of the nature set forth in clause (5) of the definition of "Liquidity Events," the Total Equity Value shall be determined (by agreement of the Board of Directors and the Majority Noteholders or by the independent valuation expert, as applicable) with reference to the public offer price for the Common Shares, unless the public offer price does not reasonably reflect the equity value of the Company. (v) If a Trading Market exists, the Total Equity Value shall be determined with reference to the market value of the Common Shares on the Trading Market, unless such market value does not reasonably reflect the equity value of the Company due to the lack of a sufficient volume of trading activity on such Trading Market or otherwise. (vi) Negotiations and determination (in each case on behalf of the Company) of Total Equity Value shall be undertaken by the Independent Directors.

Total Equity Value. (a) The Conversion Price for purposes of Section 4.1(c)(ii) shall be the result of a fraction, (x) the numerator of which is the sum of the amounts determined by multiplying the portion of the Total Equity Value allocated to each Tranche by the Tranche C.P. of such Tranche, up to and including the Tranche that includes the Total Equity Value, divided by (y) the Total Equity Value. All calculations of the Conversion Price under this Section 4.3 shall be made to the nearest cent. For greater certainty, the formula is set forth below, and Schedule A to this Note shows the Tranche, Tranche CP and Conversion Price at Total Equity Value ranging from $100,000,000 to $800,000,000. SumProduct . (1) SumProduct (Tranches; Conversion Price) __________________________________________ ------------------------------------------ Total Equity Value (1) Sum Product = Multiply each Tranche by its respective Tranche C.P. and add the totals. (b) At any time that a Conversion Price must be determined, the "Total Equity Value" shall be determined as follows: (i) The Board of Directors shall make a reasonable, good-faith determination of the Total Equity Value in accordance with paragraph (vi) below and shall submit such determination (the "Board Determination") for the approval of the Noteholders. The Total Equity Value shall be deemed to be the amount so determined by the Board if such amount is approved by the Majority Noteholders. (ii) If the Majority Noteholders do not approve the Board Determination, then the Board of Directors, on the one hand, and the Noteholders, on the other hand, shall promptly commence good-faith negotiations to arrive at a joint determination of the Total Equity Value. If the Board and the Majority Noteholders agree to a determination of the Total Equity Value, then the Total Equity Value shall be deemed to be the amount so agreed. (iii) If the Board of Directors and the Majority Noteholders do not arrive at a joint determination of the Total Equity Value within ten days of delivery by the Board of Directors to the Noteholders or by any Noteholder to the Board of Directors, as applicable, of written notice of the occurrence of an event giving rise to conversion or exchange, then no later than the 15th day after delivery of the written notice referenced in this clause (iii), the Board of Directors and the Majority Noteholders shall refer the matter to an independent valuation expert to be selected by mutual consent of the Board of Directors and the Majority Noteholders. If the independent valuation expert shall not have been agreed upon by such 15th day, then each of the Board of Directors and the Majority Noteholders shall, by the twentieth day after delivery of the written notice referenced in this clause (iii) select an independent valuation expert and instruct such expert to agree, no later than the twenty-fifth day following delivery of such notice, with the expert selected by the other party on a third independent valuation expert which shall perform the valuation hereunder. If any party shall fail to select an independent valuation expert and to instruct such expert as required by the immediately preceding sentence, then the independent valuation expert shall be the independent valuation expert selected by the other party. The determination of the independent valuation expert as provided in this clause (iii) shall be final and binding on the Company and the Holder and all fees and expenses of such expert shall be borne by the Company. (iv) If the circumstance giving rise to a right of conversion by Noteholders or exchange by the Company is a Liquidity Event of the nature set forth in clause (5) of the definition of "Liquidity Events," the Total Equity Value shall be determined (by agreement of the Board of Directors and the Majority Noteholders or by the independent valuation expert, as applicable) with reference to the public offer price for the Common Shares, unless the public offer price does not reasonably reflect the equity value of the Company. (v) If a Trading Market exists, the Total Equity Value shall be determined with reference to the market value of the Common Shares on the Trading Market, unless such market value does not reasonably reflect the equity value of the Company due to the lack of a sufficient volume of trading activity on such Trading Market or otherwise. (vi) Negotiations and determination (in each case on behalf of the Company) of Total Equity Value shall be undertaken by the Independent Directors.