Common use of Conversion Upon a Fundamental Change Clause in Contracts

Conversion Upon a Fundamental Change. (i) In the event that the Company enters into any agreement with respect to a transaction that is expected to constitute a Fundamental Change, the Company shall disclose the material terms of such agreement in a current report on Form 8-K (or in a press release if the Company is not then required to file such current reports on Form 8-K with the SEC). In the event that such a Fundamental Change occurs, if a Holder exercises its right to convert its Notes during the period from the effective date of the transaction until the Close of Business on the Business Day immediately preceding the related Fundamental Change Repurchase Date or, if there is no Fundamental Change Repurchase Date, the 35th Trading Day immediately following the effective date of such transaction, then such conversion shall be deemed to have occurred “in connection with a Fundamental Change.” (ii) In a conversion in connection with a Fundamental Change: (1) for each $1.00 principal amount of Notes, the number of shares of Common Stock issuable upon conversion shall equal the greater of (1) $1.00 divided by the then applicable Conversion Price and (2) $1.00 divided by the Stock Price with respect to such Fundamental Change (such greater number of shares, the “Fundamental Change Conversion Number”), for which the form of settlement shall be determined as provided below; (2) a Holder shall also be entitled to receive a cash payment for all accrued and unpaid interest on any such Notes being converted to, but not including the relevant date of settlement, in accordance with Section 14.02(j); and (3) settlement upon conversion may be in the form of cash, shares of Common Stock or a combination thereof, in the Company’s sole discretion. Not later than the Close of Business on the date a Fundamental Change occurs, the Company shall provide to all Holders, the Trustee and the Conversion Agent written notice of its Settlement Method for Notes surrendered for conversion in connection with such Fundamental Change, and if the Company elects Combination Settlement, such notice shall state the dollar amount of cash to be paid for each $1.00 principal amount of Notes surrendered (the “Fundamental Change Cash Amount”). Section 14.02(d), (e) (not later than the dates specified below) and (f) through (j) shall apply to conversions of Notes in connection with a Fundamental Change. (iii) If the Company elects Cash Settlement for Notes surrendered for conversion in connection with a Fundamental Change, for each $1.00 principal amount of Notes so surrendered, prior to 11:00 a.m., Eastern Time, on the third Business Day following the Conversion Date, the Company shall deliver to the converting Holder an amount of cash equal to the Fundamental Change Conversion Number times the 20-Day VWAP as of such Conversion Date (the “Fundamental Change Conversion Value”). Where the term “Cash Settlement” is used in Section 14.04, in the case of a conversion in connection with a Fundamental Change, such term shall be deemed to refer to the foregoing settlement method.

Conversion Upon a Fundamental Change. (i) In the event that the Company enters into any agreement with respect to a transaction that is expected to constitute a Fundamental Change, the Company shall disclose the material terms of such agreement in a current report on Form 8-K (or in a press release if the Company is not then required permitted to file such a current reports on Form 8-K report with the SEC). In the event that such a Fundamental Change occurs, if a Holder exercises its right to convert its Notes during the period from the effective date of the transaction until the Close of Business on the Business Day immediately preceding the related Fundamental Change Repurchase Date or, if there is no Fundamental Change Repurchase Date, the 35th Trading Day immediately following the effective date of such transaction, transaction then such conversion shall be deemed to have occurred “in connection with a Fundamental Change.” (ii) In a conversion in connection with a Fundamental Change: (1) for each $1.00 1,000 principal amount of Notes, the number of shares of Common Stock issuable upon conversion shall equal the greater of (1) $1.00 1,000 plus the amount of the Make-Whole Premium divided by the then applicable Conversion Price and (2) $1.00 1,300 divided by the Stock Price with respect to such Fundamental Change (such greater number of shares, the “Fundamental Change Conversion Number”), for which the form of settlement shall be determined as provided below; (2) a Holder shall also be entitled to receive a cash payment for all accrued and unpaid interest on any such Notes being converted to, but not including the relevant date of settlement, in accordance with Section 14.02(j10.02(j); and (3) settlement upon conversion may be in the form of cash, shares of Common Stock or a combination thereof, in the Company’s sole discretion. Not later than the Close of Business on the date a Fundamental Change occurs, the Company shall provide to all Holders, the Trustee and the Conversion Agent written notice of its Settlement Method for Notes surrendered for conversion in connection with such Fundamental Change, and if the Company elects Combination Settlement, such notice shall state the dollar amount of cash to be paid for each $1.00 1,000 principal amount of Notes surrendered (the “Fundamental Change Cash Amount”). Section 14.02(d10.02(d), (e) (not later than the dates specified below) and (f) through (j) shall apply to conversions of Notes in connection with a Fundamental Change. (iii) If the Company elects Cash Settlement for Notes surrendered for conversion in connection with a Fundamental Change, for each $1.00 1,000 principal amount of Notes so surrendered, prior to 11:00 a.m., Eastern Time, on the third Business Day following the Conversion Date, the Company shall deliver to the converting Holder an amount of cash equal to the Fundamental Change Conversion Number times the 20-Day VWAP as of such Conversion Date (the “Fundamental Change Conversion Value”). Where the term “Cash Settlement” is used in Section 14.0410.04, in the case of a conversion in connection with a Fundamental Change, such term shall be deemed to refer to the foregoing settlement method.