Common use of Conversion at the Option of the Company Clause in Contracts

Conversion at the Option of the Company. In connection with any conversion at the option of the Company in accordance with the Certificate of Designation, the Company shall deliver an Officers’ Certificate (as defined in the Certificate of Designation) to the Depositary stating that it has complied with all of the conditions to the exercise of its optional conversion rights set forth in the Certificate of Designation, and the Depositary shall have no duty or obligation to inquire or investigate whether the Company has complied with the terms of the Certificate of Designation. If the Company exercises such conversion right, it shall provide written notice of such conversion to the Depositary stating, in addition to any information required by applicable law or regulation, (i) the Conversion at the Option of the Company Date; (ii) the number of shares of Common Stock to be issued upon conversion of each share of Convertible Preferred Stock; and (iii) the number of shares of Convertible Preferred Stock to be converted; (iv) if fewer than all shares of Convertible Preferred Stock held by any holder are to be converted, the number of such shares held by such holder to be so converted; (v) the place or places where the shares of Convertible Preferred Stock to be converted are to be surrendered for conversion. Upon receipt of such notice, the Depositary shall as promptly as practicable provide notice of the Company’s exercise of such conversion right to each holder of Receipts, which notice shall be prepared by the Company and sent to the Depositary and shall state (i) the Conversion at the Option of the Company Date; (ii) the number of shares of Common Stock to be issued upon conversion of each share of Convertible Preferred Stock (and Depositary Share); (iii) the number of shares of Convertible Preferred Stock and Depositary Shares to be converted; (iv) if fewer than all Depositary Shares held by any holder are to be converted, the number of such Depositary Shares held by such holder to be so converted; (v) the place or places where the Depositary Shares to be converted are to be surrendered for conversion. On the date of any conversion at the option of the Company, a holder of a Receipt must surrender such Receipt at the Depositary Office or such other office as the Depositary may from time to time designate for such purpose, together with a notice of conversion thereof duly completed and executed and a proper assignment of such Receipt to the Company or the Transfer Agent or in blank to the Depositary or its agent. If required, the holder must also pay any stock transfer, documentary, stamp or similar taxes not payable by the Company pursuant to the Certificate of Designation or Section 3.05. Conversion of the Receipts will be deemed to have been effected immediately prior to the close of business on the date on which the foregoing requirements shall have been satisfied. Upon receipt by the Conversion Agent of a Receipt in connection with a conversion at the option of the Company, the Conversion Agent is hereby authorized and instructed to, and shall, as promptly as practicable, (a) give written notice to the Transfer Agent for the Convertible Preferred Stock of the number of shares of Convertible Preferred Stock represented by Depositary Shares as evidenced by such Receipt surrendered for conversion and the number of shares of Common Stock to be delivered upon conversion of such shares of Convertible Preferred Stock and the amount of immediately available funds (as specified in writing by the Company), if any, to be delivered to the holder of such Receipts in payment of any fractional shares of Common Stock otherwise issuable, (b) cancel such Receipt or, if a Registrar for Receipts (other than the Conversion Agent) shall have been appointed, cause such Registrar to cancel such Receipt, and (c) deliver to the Transfer Agent for the Convertible Preferred Stock or any other authorized agent of the Company (as specified in writing by the Company) certificates for the Convertible Preferred Stock represented by Depositary Shares as evidenced by such Receipt, which certificates shall thereupon be canceled by such Transfer Agent or other authorized agent. As promptly as practicable after such Transfer Agent or other authorized agent of the Company has received such certificates from the Conversion Agent, (a) the Company shall cause to be furnished to the Depositary a certificate or certificates evidencing such number of shares of Common Stock, and such amount of immediately available funds, if any, in lieu of receiving fractional shares as specified in a written notice from the Company and (b) subject to the next succeeding sentence, the Conversion Agent is hereby authorized and instructed to, and shall, deliver at the Depositary Office, (i) a certificate or certificates evidencing the number of shares of Common Stock into which the Convertible Preferred Stock represented by Depositary Shares as evidenced by the such Receipt has been converted and which have been provided by the Company and (ii) cash in lieu of receiving fractional shares of Common Stock in accordance with Section 2.13 and which has been provided by the Company. In the event that conversion at the option of the Company is effected with respect to less than all Depositary Shares as evidenced by a surrendered Receipt, upon such optional conversion the Depositary shall authenticate, countersign and deliver to such holder thereof, at the expense of the Company, a new Receipt evidencing the Depositary Shares as to which such conversion was not effected. Delivery of Common Stock and other property following a conversion pursuant to this Section 2.12 may be made by the delivery of certificates and which, if required by law in the judgment of the Company, shall be accompanied by proper instruments of transfer. If such delivery is to be made otherwise than at the Depositary Office, such delivery shall be made, as hereinafter provided, without unreasonable delay, at the risk of any holder surrendering Receipts, and for the account of such holder, to such place designated in writing by such holder. If less than all of the Convertible Preferred Stock is converted pursuant to a conversion at the option of the Company, the Depositary will select the Depositary Shares to be converted pursuant to this Section 2.12 on a pro rata basis, by lot or in such other manner as the Depositary may determine to be fair and equitable. If the Conversion Agent selects a portion of a holder’s Depositary Shares for partial conversion at the option of the Company and the holder converts a portion of the same share of Depositary Shares, the converted portion will be deemed to be from the portion selected for conversion.

Conversion at the Option of the Company. In connection with any conversion Subject to SECTION 5(b) and SECTION 8, on and after the two-and-a-half year anniversary of the Series A Original Issuance Date, at the Company’s option and election and upon its compliance with this SECTION 5(c), all outstanding shares of the Company in accordance with the Certificate of Designation, the Company Series A Preferred Stock shall deliver an Officers’ Certificate (as defined in the Certificate of Designation) to the Depositary stating that it has complied with all of the conditions to the exercise of its optional conversion rights set forth in the Certificate of Designation, and the Depositary shall have no duty or obligation to inquire or investigate whether the Company has complied with the terms of the Certificate of Designation. If the Company exercises such conversion right, it shall provide written notice of such conversion to the Depositary stating, in addition to any information required by applicable law or regulation, (i) the Conversion at the Option of the Company Date; (ii) the be converted automatically into a number of duly authorized, validly issued, fully paid and nonassessable shares of Common Stock equal to be issued upon conversion the Conversion Amount on the date of each share written notice by the Company to the holders of Convertible Preferred Stock; and (iii) the number of shares of Convertible Series A Preferred Stock to be converted; (iv) if fewer than all shares notifying such holders of Convertible Preferred Stock held the conversion contemplated by any holder are to be convertedthis SECTION 5(c), which conversion shall occur on the number of such shares held by such holder to be so converted; (v) the place or places where the shares of Convertible Preferred Stock to be converted are to be surrendered for conversion. Upon receipt of date specified in such notice, the Depositary shall as promptly as practicable provide notice of the Company’s exercise of such conversion right to each holder of Receipts, which notice shall be prepared by the Company and sent to the Depositary and shall state (i) the Conversion at the Option of the Company Date; (ii) the number of shares of Common Stock to be issued upon conversion of each share of Convertible Preferred Stock (and Depositary Share); (iii) the number of shares of Convertible Preferred Stock and Depositary Shares to be converted; (iv) if fewer not less than all Depositary Shares held by any holder are to be converted, the number of such Depositary Shares held by such holder to be so converted; (v) the place or places where the Depositary Shares to be converted are to be surrendered for conversion. On 10 Business Days nor more than 30 days following the date of any conversion at the option of the Company, a holder of a Receipt must surrender such Receipt at the Depositary Office or such other office as the Depositary may from time to time designate for such purpose, together with a notice of conversion thereof duly completed and executed and a proper assignment of such Receipt to the Company or the Transfer Agent or in blank to the Depositary or its agent. If required, the holder must also pay any stock transfer, documentary, stamp or similar taxes not payable by the Company pursuant to the Certificate of Designation or Section 3.05. Conversion of the Receipts will (which date shall be deemed to have been effected immediately prior to the close of business on the date on which the foregoing requirements shall have been satisfied. Upon receipt by the Conversion Agent Date in respect of a Receipt in connection with a conversion at the option of the Company, the Conversion Agent is hereby authorized and instructed to, and shall, as promptly as practicable, (a) give written notice to the Transfer Agent for the Convertible Preferred Stock of the number of shares of Convertible Preferred Stock represented by Depositary Shares as evidenced by such Receipt surrendered for conversion and the number of shares of Common Stock to be delivered upon conversion of such shares of Convertible Preferred Stock and the amount of immediately available funds (as specified in writing by the Company), if any, to be delivered to the holder of such Receipts in payment of any fractional shares of Common Stock otherwise issuable, (b) cancel such Receipt or, if a Registrar for Receipts (other than the Conversion Agent) shall have been appointed, cause such Registrar to cancel such Receipt, and (c) deliver to the Transfer Agent for the Convertible Preferred Stock or any other authorized agent of the Company (as specified in writing by the Company) certificates for the Convertible Preferred Stock represented by Depositary Shares as evidenced by such Receipt, which certificates shall thereupon be canceled by such Transfer Agent or other authorized agent. As promptly as practicable after such Transfer Agent or other authorized agent of the Company has received such certificates from the Conversion Agent, (a) the Company shall cause to be furnished to the Depositary a certificate or certificates evidencing such number of shares of Common Stock, and such amount of immediately available funds, if any, in lieu of receiving fractional shares as specified in a written notice from the Company and (b) subject to the next succeeding sentence, the Conversion Agent is hereby authorized and instructed to, and shall, deliver at the Depositary Office, (i) a certificate or certificates evidencing the number of shares of Common Stock into which the Convertible Preferred Stock represented by Depositary Shares as evidenced by the such Receipt has been converted and which have been provided by the Company and (ii) cash in lieu of receiving fractional shares of Common Stock in accordance with Section 2.13 and which has been provided by the Company. In the event that conversion at the option of the Company is effected with respect to less than all Depositary Shares as evidenced by a surrendered Receipt, upon such optional conversion the Depositary shall authenticate, countersign and deliver to such holder thereof, at the expense of the Company, a new Receipt evidencing the Depositary Shares as to which such conversion was not effected. Delivery of Common Stock and other property following a conversion pursuant to this Section 2.12 SECTION 5(c)), provided that such notice may be made delivered by the Company only if (i) the Closing Price per share of the Common Stock for each of 20 or more Trading Days in a 30 consecutive Trading Day period ending on the Trading Day immediately prior to delivery of certificates a notice of conversion pursuant to this SECTION 5(c) was at or above 300% of the then-applicable Conversion Price and which(ii) all requisite arrangements with the Company’s transfer agent, the Exchange on which shares of the Common Stock are then listed, and any other requisite securities intermediary (including The Depository Trust Company and Cede & Co., if required by law in applicable) to permit trading of such shares of Common Stock on the judgment Conversion Date shall have been completed; provided, however, that the Company shall not have the right to require conversion of the CompanySeries A Preferred Stock pursuant to this SECTION 5(c), unless (x) the Company shall have, as of the Conversion Date, funds legally available therefor to pay all accrued and unpaid Dividends on the shares of Series A Preferred Stock that are being converted into Common Stock and (y) at the time of the mailing of the notice of conversion, either (1) the shelf registration statement referred to in Section 2.2 of the Registration Rights Agreement is effective and available for resales of the Common Stock issuable upon conversion of the Series A Preferred Stock or (2) the shares of Common Stock for which the Series A Preferred Stock are convertible into may be sold by all holders of the Series A Preferred Stock under Rule 144 under the Securities Act without volume or other limitation. Once delivered, such notice shall be accompanied by proper instruments of transfer. If such delivery is to be made otherwise than at irrevocable, unless the Depositary Office, such delivery shall be made, as hereinafter provided, without unreasonable delay, at Company obtains the risk of any holder surrendering Receipts, and for the account of such holder, to such place designated in writing by such holder. If less than all written consent of the Convertible holders representing a majority of the outstanding shares of Series A Preferred Stock. Notwithstanding the foregoing, the holders of Series A Preferred Stock is shall continue to have the right to convert their shares of Series A Preferred Stock pursuant to SECTION 5(a) until and through the Conversion Date contemplated in this SECTION 5(c) and if such shares of Series A Preferred Stock are converted pursuant to a conversion at the option of the Company, the Depositary will select the Depositary Shares to SECTION 5(a) such shares shall no longer be converted pursuant to this Section 2.12 on a pro rata basis, by lot or in such other manner as the Depositary may determine to be fair and equitable. If the Conversion Agent selects a portion of a holder’s Depositary Shares for partial conversion at the option of the Company SECTION 5(c) and the holder converts a portion Company’s notice delivered to the holders pursuant to this SECTION 5(c) shall be of the same share of Depositary Shares, the no effect with respect to such shares converted portion will be deemed pursuant to be from the portion selected for conversionSECTION 5(a).

Conversion at the Option of the Company. (a) In connection with any conversion at the option of the Company in accordance with the Certificate of Designation, the Company shall deliver an Officers’ Certificate (as defined in the Certificate of Designation) to the Depositary stating that it has complied with all of the conditions to the exercise of its optional conversion rights set forth in the Certificate of Designation, and the Depositary shall have no duty or obligation to inquire or investigate whether the Company has complied with the terms of the Certificate of Designation. . (b) If the Company exercises such conversion right, it shall provide written notice of such conversion to the Depositary stating, in addition to any information required by applicable law or regulation, (i) the Conversion at the Option of the Company Date; (ii) the number of shares of Common Stock to be issued upon conversion of each share of Convertible Preferred Stock; and (iii) the number of shares of Convertible Preferred Stock to be converted; (iv) if fewer than all shares of Convertible Preferred Stock held by any holder are to be converted, the number of such shares held by such holder to be so converted; and (v) the place or places where the shares of Convertible Preferred Stock to be converted are to be surrendered for conversion. . (c) Upon receipt of such notice, the Depositary shall as promptly as practicable provide notice of the Company’s exercise of such conversion right to each holder of Receipts, which notice shall be prepared by the Company and sent to the Depositary and shall state (i) the Conversion at the Option of the Company Date; (ii) the number of shares of Common Stock to be issued upon conversion of each share of Convertible Preferred Stock (and Depositary Share); (iii) the number of shares of Convertible Preferred Stock and Depositary Shares to be converted; (iv) if fewer than all Depositary Shares held by any holder are to be converted, the number of such Depositary Shares held by such holder to be so converted; (v) the place or places where the Depositary Shares to be converted are to be surrendered for conversion. On the date of any conversion at the option of the Company, if a holder’s interest is in certificated form a holder of a Receipt must surrender such Receipt at the Depositary Office or such other office as the Depositary may from time to time designate for such purpose, together with a notice of conversion thereof duly completed and executed and a proper assignment of such Receipt to the Company or the Transfer Agent or in blank to the Depositary or its agent. If required, the holder must also pay any stock transfer, documentary, stamp or similar taxes not payable by the Company pursuant to the Certificate of Designation or Section 3.05. Conversion of the Receipts will be deemed to have been effected immediately prior to the close of business on the date on which the foregoing requirements shall have been satisfied. If a holder’s interest is a beneficial interest in a global certificate representing Receipts, in order to convert a holder shall comply with DTC’s and the Depositary’s procedures for converting a beneficial interest in a global security. In addition, a holder may be required to furnish appropriate endorsements and transfer documents, pay any stock transfer, documentary, stamp or similar taxes and pay funds equal to any declared but unpaid dividend payable on the next dividend payment date. (d) Upon receipt by the Conversion Agent of a Receipt in connection with a conversion at the option of the Company, the Conversion Agent is hereby authorized and instructed to, and shall, as promptly as practicable, (ai) give written notice to the Transfer Agent for the Convertible Preferred Stock of the number of shares of Convertible Preferred Stock represented by Depositary Shares as evidenced by such Receipt surrendered for conversion and the number of shares of Common Stock to be delivered upon conversion of such shares of Convertible Preferred Stock and the amount of immediately available funds (as specified in writing by the Company), if any, to be delivered to the holder of such Receipts in payment of any fractional shares of Common Stock otherwise issuable, (bii) cancel such Receipt or, if a Registrar for Receipts (other than the Conversion Agent) shall have been appointed, cause such Registrar to cancel such Receipt, and (ciii) deliver to the Transfer Agent for the Convertible Preferred Stock or any other authorized agent of the Company (as specified in writing by the Company) certificates for the Convertible Preferred Stock represented by Depositary Shares as evidenced by such Receipt, which certificates shall thereupon be canceled by such Transfer Agent or other authorized agent. . (e) As promptly as practicable after such Transfer Agent or other authorized agent of the Company has received such certificates from the Conversion Agent, (a) the Company shall cause to be furnished to the Depositary a certificate or certificates evidencing such number of shares of Common Stock, and such amount of immediately available funds, if any, in lieu of receiving fractional shares as specified in a written notice from the Company and (b) subject to the next succeeding sentence, the Conversion Agent is hereby authorized and instructed to, and shall, deliver at the Depositary Office, (i) a certificate or certificates evidencing the number of shares of Common Stock into which the Convertible Preferred Stock represented by Depositary Shares as evidenced by the such Receipt has been converted and which have been provided by the Company and (ii) cash in lieu of receiving fractional shares of Common Stock in accordance with Section 2.13 and which has been provided by the Company. In the event that conversion at the option of the Company is effected with respect to less than all Depositary Shares as evidenced by a surrendered Receipt, upon such optional conversion the Depositary shall authenticate, countersign and deliver to such holder thereof, at the expense of the Company, a new Receipt evidencing the Depositary Shares as to which such conversion was not effected. . (f) Delivery of Common Stock and other property following a conversion pursuant to this Section 2.12 2.11 may be made by the delivery of certificates and which, if required by law in the judgment of the Company, shall be accompanied by proper instruments of transfer. If such delivery is to be made otherwise than at the Depositary Office, such delivery shall be made, as hereinafter provided, without unreasonable delay, at the risk of any holder surrendering Receipts, and for the account of such holder, to such place designated in writing by such holder. . (g) If less than all of the Convertible Preferred Stock is converted pursuant to a conversion at the option of the Company, the Depositary will select the Depositary Shares to be converted pursuant to this Section 2.12 2.11 on a pro rata basis, by lot or in such other manner as the Depositary may determine to be fair and equitable. If the Conversion Agent selects a portion of a holder’s Depositary Shares for partial conversion at the option of the Company and the holder converts a portion of the same share of Depositary Shares, the converted portion will be deemed to be from the portion selected for conversion.