(f) Company’s Market Capitalization. The “Company’s Market Capitalization” means and shall be determined in the following order of priority as of the relevant date of determination:
(1) First, so long as the Specified Shareholders beneficially own or control, in the aggregate, no more than 88% of the total amount of outstanding fully-diluted shares of the Company’s common stock, the product of (A) the number of fully-diluted shares of the Company’s common stock then outstanding and (B) the closing price of a share of the Company’s common stock as of the end of the most recently ended trading day as reported by the Nasdaq Stock Market or such successor or other securities exchange on which the Company’s common stock may then be listed. The Company shall deliver to PBGC the Specified Shareholder common equity ownership totals (to the best of the Company’s knowledge) within three (3) Business Days of receipt of a written request by PBGC therefor;
(2) Second, if PBGC or the Company requests a determination of the Company’s Market Capitalization by written notice delivered to the other Party and the Specified Shareholders own or control more than 88% of the total amount of outstanding fully-diluted shares of the Company’s common stock, the product of (A) the number of fully-diluted shares of the Company’s common stock outstanding and (B) the then-current Average Quoted Price;
(3) Third, if (A) PBGC requests a determination of the Company’s Market Capitalization by written notice delivered to the Company, (B) the Specified Shareholders own or control more than 88% of the total amount of outstanding fully-diluted shares of the Company’s common stock, and (C) an Average Quoted Price cannot be promptly calculated (due to a lack of available quotes or otherwise) within three (3) Business Days after such request, then the Company’s Market Capitalization shall be deemed (for the purposes of this Agreement only) to be less than $1.0 billion on a fully-diluted basis unless the Company then has issuer ratings (A) by both S&P of CCC- or higher and Moody’s of Caa3 or higher, in which case the Company’s Market Capitalization shall be deemed to be greater than $1.0 billion but, except as specified in the next sub-clause (B), less than $1.5 billion or (B) by both S&P of CCC or higher and Moody’s of Caa2 or higher, in which case the Company’s Market Capitalization shall be deemed (for purposes of this Agreement only) to be greater than $1.5 billion, in each case until such time as a subsequent determination of the Company’s Market Capitalization is requested by either PBGC or the Company and determined in accordance with the procedures set forth herein.
AGREEMENT – Page 38
(4) If either S&P or Moody’s withdraws its rating or otherwise no longer rates the Company, then, in the circumstances contemplated by Section 7.06(f)(3), the Company’s Market Capitalization shall be deemed (for purposes of this Agreement only) to be less than $1.0 billion on a fully-diluted basis.
(5) The Company’s Market Capitalization as calculated under Sections 7.06(f)(3) and 7.06(f)(4) shall only be for the purposes of this Agreement.
107.033.252 shares out as of 12.08.2016 10-Q $09.342890 is the magic number