Common use of Trading Activity Clause in Contracts

Trading Activity. (a) Prior to the earlier of the Closing Date or the termination of this Agreement, the Holder may dispose of Initial Shares and Interim Shares, if any, as follows: the Holder may sell (i) Initial Shares and Interim Shares via ordinary brokerage transactions at a price (gross of commissions) of at least $1.50 per share or (ii) block trades of Initial Shares and/or Interim Shares into the Trading Market at a price (gross of commissions) of at least $1.50 per share. For the avoidance of doubt, (x) the Holder may engage in any short selling of the Company’s securities, establish or increase any “put equivalent position” as defined in Rule 16(a)-1(h) under the Exchange Act, or engage in any other swap or hedging transactions with respect to the Company’s securities; provided, however, that such transaction is at a price (gross of commissions) of at least $1.50 per share; and provided, further, that such transaction is closed out no later than the Closing Date solely by delivery of Common Stock received pursuant to this Agreement and (y) that the restrictions of this Section 5.3(a) shall only apply in respect of transactions entered into after the date hereof. (b) Except as set forth in Section 5.3(a) or with the prior written consent of the Company, the Holder agrees that neither it nor any of its agents, affiliates or representatives will, from the date hereof until the earlier of the Closing Date or the termination of this Agreement directly or indirectly: (i) acquire (or propose or agree to acquire), of record or beneficially, by purchase or otherwise, any Common Stock, equity securities, debt securities (other than the Convertible Notes) or assets of the Company or any of its subsidiaries, or rights or options to acquire interests in any of the Company's Common Stock, equity securities, debt securities (other than the Convertible Notes) or assets; or (ii) engage in any short selling of the Company’s securities, establish or increase any “put equivalent position” as defined in Rule 16(a)-1(h) under the Exchange Act, or engage in any other swap or hedging transactions with respect to the Company’s securities. (c) Prior to the Closing, the Company shall not effect any exchange requiring an issuance of Shares to the Holder to the extent that such issuance would result in the Holder receiving and beneficially owning (together with any other Common Stock received by the Holder pursuant to a prior such exchange and any other Common Stock or right to acquire Common Stock beneficially owned by the Holder, and not sold and held pending delivery) on such date, more than the Holder's Pro Rata Percentage (as set forth on Schedule A hereto) of 9.99% of the Company’s outstanding shares of Common Stock at any time. (d) Within 30 days of the Closing, the Holder will settle its outstanding swap or hedging transaction(s) with respect to the Company’s securities with Société Générale, if any, solely by delivery of Common Stock received pursuant to this Agreement. (e) Prior to the Closing, the Holder agrees not to exercise its rights to convert the Convertible Notes it holds into shares of Common Stock pursuant to the terms of the Indenture.

Trading Activity. (a) Prior to the earlier of the Closing Date or the termination of this Agreement, the a Holder may dispose of Initial Shares and Interim Shares, if any, as follows: the a Holder may (x) sell (i) Initial Shares and Interim Shares via ordinary brokerage transactions at a price (gross of commissions) of at least $1.50 per share or (ii) block trades of Initial Shares and/or Interim Shares into the Trading Market at a price (gross of commissions) of at least $1.50 per shareshare or (y) deliver Initial Shares and Interim Shares to satisfy all or a portion of such Holder’s obligations to deliver Common Stock pursuant to any existing swap arrangements of such Holder. For the avoidance of doubt, (x) the a Holder may engage in any short selling of the Company’s securities, establish or increase any “put equivalent position” as defined in Rule 16(a)-1(h) under the Exchange Act, or engage in any other swap or hedging transactions with respect to the Company’s securities; provided, however, that such transaction is at a price (gross of commissions) of at least $1.50 per share; and provided, further, that such transaction is closed out no later than the Closing Date solely by delivery of Common Stock received pursuant to this Agreement and (y) that the restrictions of this Section 5.3(a) shall only apply in respect of transactions entered into after the date hereof. (b) Except as set forth in Section 5.3(a) or with the prior written consent of the Company, the each Holder agrees that neither it nor any of its agents, affiliates or representatives will, from the date hereof until the earlier of the Closing Date or the termination of this Agreement directly or indirectly: (i) acquire (or propose or agree to acquire), of record or beneficially, by purchase or otherwise, any Common Stock, equity securities, debt securities (other than the Convertible Notes) or assets of the Company or any of its subsidiaries, or rights or options to acquire interests in any of the Company's Common Stock, equity securities, debt securities (other than the Convertible Notes) or assets; or (ii) engage in any short selling of the Company’s securities, establish or increase any “put equivalent position” as defined in Rule 16(a)-1(h) under the Exchange Act, or engage in any other swap or hedging transactions with respect to the Company’s securities. (c) Prior to the Closing, the Company shall not effect any exchange requiring an issuance of Shares to the any Holder to the extent that such issuance would result in the such Holder receiving and beneficially owning (together with any other Common Stock received by the such Holder pursuant to a prior such exchange and any other Common Stock or right to acquire Common Stock beneficially owned by the such Holder, and not sold and held pending delivery) on such date, more than the such Holder's Pro Rata Percentage (as set forth on Schedule A hereto) of 9.99% of the Company’s outstanding shares of Common Stock at any time. (d) Within 30 days of the Closing, the each Holder will settle its outstanding swap or hedging transaction(s) with respect to the Company’s securities with Société Générale, if any, solely by delivery of Common Stock received pursuant to this Agreement. (e) Prior to the Closing, the each Holder agrees not to exercise its rights to convert the Convertible Notes it holds into shares of Common Stock pursuant to the terms of the Indenture.