Nautilus 2009 Annual Report Download - page 277

ratified by the board of directors of Borrower or (ii) who are then serving as directors appointed by the board of directors to fill vacancies on the
board of directors caused by death or resignation (but not by removal) or to fill newly-created directorships or (b) any “person” or “group” (as
such terms are used in Section 13(d) of the Securities Exchange Act of 1934) becomes the “beneficial owner” (as defined in Rules 13d-3 and
13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities
that such person or group has the right to acquire whether such right is immediately exercisable or only after the passage of time), directly or
indirectly, of Voting Stock of Borrower (or other securities convertible into such Voting Stock) representing 30 percent or more of the combined
voting power of all Voting Stock of Borrower (provided that any Voting Stock held by Sherborne Investors Management LP shall be excluded
from calculation for the purposes of this clause (b)).
“ Closing Date ” means March 8, 2010, or such other date as the parties mutually agree.
“ Collateral ” means substantially all existing and after-acquired assets of Borrower as described in the Security Agreement and the
IP Security Agreements.
“ Commercial Accounts Receivable ” means all Accounts of Borrower that are not Consumer Finance Accounts Receivable.
“ Commercial Business ” means the assets of Borrower held for sale as described in the Borrower’s report on Form 10-Q for fiscal
quarter ending September 30, 2009 as filed with the SEC.
“ Consumer Finance Accounts Receivable ” means Accounts of Borrower where the account debtors are individuals who purchased
Inventory directly from Borrower.
“ Consumer Protection Laws ” means any and all applicable federal, state, and local statutes, laws, regulations, rules, and ordinances
(whether now existing or hereafter enacted or promulgated), and all applicable judicial, administrative, and regulatory decrees, judgments, and
orders, including common law rulings and determinations, relating to consumer credit or the protection of consumers, including, but not limited
to, the Consumer Credit Protection Act.
“ Continuing Business ” means all business operations of Borrower, other than the Commercial Business and any other discontinued
operations of the Borrower.
“ Continuing Business EBITDA ” means, for any measurement period in question, an amount equal to Continuing Business Net
Income for such period, plus the following, to the extent deducted or excluded in computing such Continuing Business Net Income: (a) interest
expense of Borrower, (b) income taxes (and franchise taxes in the nature and in lieu of income taxes), any state single business or unitary or
similar taxes of Borrower, (c) depreciation expense of Borrower, (d) amortization expense of Borrower (all as determined in accordance with
GAAP), and (e) cash gains arising from the write-up of assets.
“ Continuing Business Net Income ” means, for any measurement period in question, the net income of Borrower arising from the
Continuing Business for such period,
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