Common use of Company Right to Force Automatic Conversion Clause in Contracts

Company Right to Force Automatic Conversion. The Company may, at its option, automatically convert all of the Notes (an "Automatic Conversion") at any time prior to June 21, 2005 if no Event of Default has occurred and is continuing and the Closing Price per share of the Common Stock has exceeded 150% of the Conversion Price then in effect for at least fifteen (15) Trading Days within a period of twenty (20) consecutive Trading Days ending five (5) Trading Days prior to the Automatic Conversion Date, provided (i) that a registration statement covering the resale of the Common Stock issuable upon such conversion (the "Conversion Shares") is effective and available for resale of the Notes and the Common Stock issuable upon conversion of Notes from the twenty-fifth (25th) Trading Date prior to the Automatic Conversion Date to and including the Automatic Conversion Date to the extent required under the Registration Rights Agreement and (ii) the Conversion Shares are listed for trading on the Principal Market (as defined in the Securities Purchase Agreement). If the Company exercises the right of conversion set forth in this Section 15.12, the Company shall make an additional payment in cash to each holder of Notes with respect to the Notes converted, in an amount (the "Company Conversion Provisional Payment") equal to $157.50 per each $1,000 principal amount of the Note, less the amount of any interest actually paid on such Note to the Conversion Date (and, if such Note is converted between a record date and the next interest payment date, less interest payable on each $1,000 principal amount of such Note on such interest payment date). Unless the Company shall have theretofore called for redemption all of the Notes then outstanding, the Company shall give to all Noteholders by mailing, first class postage prepaid, a notice (the "Automatic Conversion Notice") of the Automatic Conversion not more than thirty (30) days and not less than five (5) days before the Automatic Conversion Date to such Noteholders at their last addresses as they shall appear upon the Notes register. Any notice that is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the registered Noteholder receives the notice. The Company shall also issue a press release regarding its election to convert the Notes, and shall use commercially reasonable efforts to have such press release available on Bloomberg Business News. In any case, failure to duly give such notice to the holder of any Notes designated for redemption in whole or in part, or any defect in the notice, shall not affect the validity of the proceedings for the automatic conversion of any other Notes. Each Automatic Conversion Notice shall state:

Company Right to Force Automatic Conversion. The Company may, at its option, automatically convert all or a portion of the Notes (an "Automatic Conversion") at any time prior to June 2110, 2005 2007 if no Event of Default has occurred and is continuing and the Closing Price (as defined in Section 15.6(e)) per share of the Common Stock has exceeded 150% two hundred and twenty five percent (225%) of the Conversion Price then in effect for at least fifteen (15) Trading Days within a period of twenty (20) consecutive Trading Days ending five (5) Trading Days prior to the date the Automatic Conversion Notice (defined below) specifying the date (the "Automatic Conversion Date") on which an Automatic Conversion will become effective is sent to all holders of Notes, provided that either (ix) that a registration statement covering the resale of the Common Stock issuable upon such conversion (the "Conversion Shares") Shares is effective and available for resale use from the date of the Notes Automatic Conversion Notice (as defined below) through and including the Common Stock issuable upon conversion earlier of Notes from the twenty-fifth (25th) Trading Date prior to the Automatic Conversion Date or the last date on which the registration statement is required to and including be kept effective under the terms of the Registration Rights Agreement, or (y) the Conversion Shares issuable upon the Automatic Conversion may be sold pursuant to Rule 144 under the Securities Act. Subject to Article IV, if the Automatic Conversion Date is prior to the extent required under the Registration Rights Agreement and (ii) the Conversion Shares are listed for trading on the Principal Market (as defined in the Securities Purchase Agreement). If the Company exercises the right of conversion set forth in this Section 15.12June 10, 2007, the Company shall make an additional payment in cash to each holder of Notes with respect to the Notes converted, in an amount equal to $135 per each One Thousand United States Dollars ($1,000) principal amount of the Note (the "Company Conversion Provisional Payment") equal to $157.50 per each $1,000 principal amount of the Note), less the amount of any interest actually paid on such the Note prior to the Automatic Conversion Date (and, if such the Note is converted between a record date and the next interest payment dateInterest Payment Date, less interest payable on each One Thousand United States Dollars ($1,000 1,000) principal amount of such the Note on such interest payment datenext Interest Payment Date). Unless the Company shall have theretofore called for redemption all of the Notes then outstanding, if the Company elects to convert all or a portion of the Notes pursuant to this Section 15.3, the Company, or at its request (which must be received by the Trustee at least five (5) Business Days prior to the date the Trustee is requested to give notice as described below unless a shorter period is agreed to by the Trustee), the Trustee in the name of and at the expense of the Company, shall give mail or cause to all Noteholders by mailing, first class postage prepaid, be mailed a notice (the "Automatic Conversion Notice") of the Automatic Conversion not more than thirty (30) days and but not less than five (5) days before the Automatic Conversion Date to such Noteholders holders at their last addresses as they shall appear upon the Notes registerRegister. Such notice shall be irrevocable. Notice shall be mailed by first class mail. Any notice that is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the registered Noteholder holder receives the notice. The Company shall also issue a press release regarding its election to convert the Notes, and shall use commercially reasonable efforts to have such press release available on Bloomberg Business News. In any case, failure to duly give such notice to the holder of any Notes designated for redemption in whole or in part, or any defect in the notice, shall not affect the validity of the proceedings for the automatic conversion of any other Notes. Each Automatic Conversion Notice shall state:

Company Right to Force Automatic Conversion. The Company may, at its option, automatically convert all or a portion of the Notes (an "“Automatic Conversion"”) at any time prior to June 21March 26, 2005 2027 if no Event of Default has occurred and is continuing and (a) the Closing Price (as defined in Section 15.6(h)) per share of the Common Stock has exceeded one hundred and fifty percent (150% %) of the Conversion Price then in effect for at least fifteen twenty (1520) Trading Days within a period of twenty thirty (2030) consecutive Trading Days ending five (5) Trading Days prior to the date the Automatic Conversion Notice (defined below) specifying the date (the “Automatic Conversion Date”) on which an Automatic Conversion will become effective is sent to all holders of Notes, provided and (ib) that a registration statement covering the resale Equity Conditions shall have been satisfied as of the Common Stock issuable upon date of the Automatic Conversion Notice. The Company shall not be entitled to deliver an Automatic Conversion Notice if the foregoing conditions are not satisfied as of the date thereof. Notwithstanding anything herein to the contrary, if at any time during the Automatic Conversion Period, the Equity Conditions are no longer satisfied (an “Automatic Conversion Equity Conditions Failure”), the Company shall provide a notice to the Trustee and each holder of Notes of such conversion (failure and, unless the "Conversion Shares") is effective and available for resale holders of not less than a majority in principal amount of the Notes and the Common Stock issuable upon conversion of Notes from the twenty-fifth (25th) Trading Date then Outstanding waive such failure prior to the Automatic Conversion Date Date, the Automatic Conversion Notice shall be of no further force and effect, no Automatic Conversion shall occur on the Automatic Conversion Date, and the Company shall withdraw the Automatic Conversion Notice. Subject to and including the Intercreditor Agreement, if the Automatic Conversion Date is prior to the extent required under the Registration Rights Agreement and (ii) the Conversion Shares are listed for trading on the Principal Market (as defined in the Securities Purchase Agreement). If the Company exercises the right of conversion set forth in this Section 15.12March 26, 2010, the Company shall make an additional payment in cash to each holder of Notes with respect to the Notes converted, in an amount equal to $187.50 per each One Thousand United States Dollars ($1,000) principal amount of the Note (the "“Company Conversion Provisional Payment") equal to $157.50 per each $1,000 principal amount of the Note”), less the amount of any interest actually paid on such the Note prior to the Automatic Conversion Date (and, if such the Note is converted between a record date and the next interest payment dateInterest Payment Date, less interest payable on each One Thousand United States Dollars ($1,000 1,000) principal amount of such the Note on such interest next Interest Payment Date). If the Automatic Conversion relates to all outstanding Notes, subject to Section 15.2, a Company Conversion Provisional Payment, or portion thereof, may be paid in whole or in part in cash and/or through the issuance of Common Stock, provided that (a) any shares of Common Stock issued in payment date)or partial payment of the Company Conversion Provisional Payment when added to the sum of (1) the shares of Common Stock issued or issuable upon conversion of all the Notes, and (2) the Additional Shares issued pursuant to the terms of this Indenture, shall not exceed 19.99% of the Company’s aggregate outstanding capital stock as of March 26, 2007 unless the stockholders of the Company have otherwise approved such greater issuance of Common Stock and (b) each holder of the Notes shall be treated on the same basis as to the percentage of the Company Conversion Provisional Payment paid in shares of Common Stock, and (c) no portion of the Company Conversion Provisional Payment shall be paid in shares of Common Stock unless on the Automatic Conversion Date a Registration Statement is effective and available for the resale of such shares in accordance with the Registration Rights Agreement. Common Stock used to pay any Company Conversion Provisional Payment shall be valued at ninety-five percent (95%) of the Current Market Price of the Common Stock as of the date two (2) Business Days prior to the Automatic Conversion Date. Unless the Company shall have theretofore called for redemption all of the Notes then outstanding, if the Company elects to convert all or a portion of the Notes pursuant to this Section 15.3, the Company, or at its request (which must be received by the Trustee at least five (5) Business Days prior to the date the Trustee is requested to give notice as described below unless a shorter period is agreed to by the Trustee), the Trustee in the name of and at the expense of the Company, shall give mail or cause to all Noteholders by mailing, first class postage prepaid, be mailed a notice (the "“Automatic Conversion Notice"”) of the Automatic Conversion not more than thirty (30) days and but not less than five ten (510) trading days before the Automatic Conversion Date to such Noteholders holders at their last addresses as they shall appear upon the Notes registerRegister. Such notice shall be irrevocable. Notice shall be mailed by first class mail. Any notice that is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the registered Noteholder holder receives the notice. The Company shall also issue a press release regarding its election to convert the Notes, and shall use commercially reasonable efforts to have such press release available on Bloomberg Business News. In any case, failure to duly give such notice to the holder of any Notes designated for redemption in whole or in part, or any defect in the notice, shall not affect the validity of the proceedings for the automatic conversion of any other Notes. Each Automatic Conversion Notice shall state:

Company Right to Force Automatic Conversion. The Company may, at its option, automatically convert all or a portion of the Notes (an "Automatic Conversion") at any time prior to June 21October 15, 2005 2025 if no Event of Default has occurred and is continuing and the Closing Price (as defined in Section 15.6(e)) per share of the Common Stock has exceeded one hundred and fifty percent (150% %) of the Conversion Price then in effect for at least fifteen twenty (1520) Trading Days within a period of twenty thirty (2030) consecutive Trading Days ending within five (5) Trading Days prior to of the date the Automatic Conversion Notice (defined below) specifying the date (the "Automatic Conversion Date") on which an Automatic Conversion will become effective is sent to all holders of Notes, provided that either (ix) that a registration statement covering the resale of the Common Stock issuable upon such conversion (the "Conversion Shares") Shares is effective and available for resale use from the date of the Notes Automatic Conversion Notice (as defined below) through and including the Common Stock issuable upon conversion earlier of Notes from the twenty-fifth (25th) Trading Date prior to 30 days after the Automatic Conversion Date or the last date on which the registration statement is required to be kept effective under the terms of the Registration Rights Agreement, or (y) the Conversion Shares issuable upon the Automatic Conversion may be sold pursuant to Rule 144(k) under the Securities Act (assuming, for purposes of such determination, that no recipient of Conversion Shares is an "affiliate" of the Company within the meaning of such Rule and including that all recipients of Conversion Shares have held the Notes since the date of their original issuance). The Company may only elect an Automatic Conversion with respect to all or any part of the Notes if it has, as of the date of the Automatic Conversion Notice required by the following paragraph, sufficient shares of Common Stock authorized and available for issuance on conversion of the Notes (or parts thereof) so called for Automatic Conversion. If the Automatic Conversion Date is prior to the extent required under the Registration Rights Agreement and (ii) the Conversion Shares are listed for trading on the Principal Market (as defined in the Securities Purchase Agreement). If the Company exercises the right of conversion set forth in this Section 15.12October 15, 2008, the Company shall make an additional payment in cash to each holder of Notes with respect to the Notes convertedconverted (or portion thereof), in an amount equal to $181.33 per each One Thousand United States Dollars ($1,000) principal amount of the holder's Notes (or portion thereof) (the "Company Conversion Provisional Payment") equal to $157.50 per each $1,000 principal amount of the Note), less the amount of any interest actually paid on such Note the holder's Notes (or portion thereof) prior to the Automatic Conversion Date (and, if such Note is the relevant Notes are converted between after a record date and prior to the next interest payment daterelated Interest Payment Date, less interest payable on each $1,000 principal amount of such Note Notes (or portion thereof) on such Interest Payment Date, which interest payment dateshall be paid to the record holder at the close of business on the relevant record date as provided in Section 2.3). Unless Except as provided in the immediately preceding sentence, if the Automatic Conversion Date with respect to any Notes (or portions thereof) subject to an Automatic Conversion occurs following a record date and prior to the related Interest Payment Date, then unless the Company defaults in its obligation to deliver the shares of Common Stock issuable on such Automatic Conversion. the Company shall have theretofore called for redemption not be obligated to pay any interest on such Interest Payment Date, either to the holder of such Notes (or portions thereof) at the close of business on the relevant record date or to the holder of such Notes (or portions thereof) to whom the Company issues the shares of Common Stock issuable on the Automatic Conversion. If the Company elects to convert all or a portion of the Notes then outstandingpursuant to this Section 15.3, the Company Company, or at its request (which must be received by the Trustee at least five (5) Business Days prior to the date the Trustee is requested to give notice as described below unless a shorter period is agreed to by the Trustee), the Trustee in the name of and at the expense of the Company, shall give send or cause to all Noteholders by mailing, first class postage prepaid, be sent a notice (the "Automatic Conversion Notice") of the Automatic Conversion not more than thirty (30) days and but not less than five (5) days before the Automatic Conversion Date to such Noteholders holders at their last addresses as they shall appear upon the Notes registerRegister. Such notice shall be irrevocable. Any notice that is mailed sent in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the registered Noteholder holder receives the notice. The Company shall also issue a press release regarding its election to convert the Notes, and shall use commercially reasonable efforts to have such press release available on Bloomberg Business News. In any case, failure to duly give such notice to the holder of any Notes designated for redemption Automatic Conversion in whole or in part, or any defect in the notice, shall not affect the validity of the proceedings for the automatic conversion Automatic Conversion of any other Notes. Each Automatic Conversion Notice shall state: