Common use of Limitations on Net Physical Settlement by Counterparty Clause in Contracts

Limitations on Net Physical Settlement by Counterparty. The total number of Shares that may be delivered at settlement by Counterparty with respect to this Transaction and the Transaction described in the Confirmation of OTC Warrant Transaction between the Counterparty and ML dated as of November 16, 2005, shall not exceed two times the sum of the total number of Warrants covered by this Transaction and such other Transaction and in any event the sum of such Shares for both Transactions shall not exceed 19.5% of the Counterparty’s outstanding Shares on the Effective Date (“Maximum Deliverable Share Amount”). Counterparty represents and warrants that the number of Available Shares as of the Trade Date is greater than the Maximum Deliverable Share Amount. Counterparty covenants and agrees that Counterparty shall not take any action of corporate governance or otherwise to reduce the number of Available Shares below the Maximum Deliverable Share Amount.

Limitations on Net Physical Settlement by Counterparty. The total number of Shares that may be delivered at settlement by Counterparty with respect to this Transaction and the Transaction described in the Confirmation of OTC Warrant Transaction between the Counterparty and ML dated as of November 1621, 2005, shall not exceed two times the sum of the total number of Warrants covered by this Transaction and such other Transaction and in any event the sum of such Shares for both Transactions shall not exceed 19.5% of the Counterparty’s outstanding Shares on the Effective Date (“Maximum Deliverable Share Amount”). Counterparty represents and warrants that the number of Available Shares as of the Trade Date is greater than the Maximum Deliverable Share Amount. Counterparty covenants and agrees that Counterparty shall not take any action of corporate governance or otherwise to reduce the number of Available Shares below the Maximum Deliverable Share Amount.