Cash Payment Condition. Means any of the following: (A) the effectiveness of the Registration Statement has been suspended, including if a stop order has been issued, by the Securities and Exchange Commission (the "SEC"); (B) the Corporation has failed to timely deliver the shares of Common Stock issuable upon conversion of any shares of Series B Preferred Stock; (C) the Corporation has initiated, or there is continuing, a "Suspension" pursuant to the Purchase Agreement for the Series B Preferred Stock, dated
... March 29, 2004, by and among the Corporation and the Purchasers (the "Purchasers") set forth on the signature page thereto (the "Purchase Agreement"); 3 (D) the Common Stock is not listed on the New York Stock Exchange, the American Stock Exchange, the Nasdaq National Market or the Nasdaq SmallCap Market, has been delisted, has not traded on one or more of the foregoing for a period of 10 consecutive Business Days, or delisting has been threatened in writing by any of the foregoing, as a result of the Corporation's failure to meet the applicable minimum requirements for listing; (E) if, after the Corporation has made its election to make a dividend or redemption payment in shares of Registered Common Stock, there is a public announcement of an intention by the Corporation to effect a Change of Control (as defined herein); or (F) any of the Events of Default set forth in Section 5B(a)(iii), (iv), (v) or (vi) shall then have occurred and be continuing, notwithstanding any remaining right of the Corporation to cure such Event of Default; provided, however, that each of the foregoing conditions may be waived by a Holder of Series B Preferred Stock, solely with respect to the shares of Common Stock of the Corporation which it is entitled to receive with respect to such Series B Preferred Stock pursuant to the applicable provision of this Certificate of Designation, and in the case of any such waiver, the Corporation shall make the related payment in the form of shares of Registered Common Stock.
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