Limit on Issuance of Shares of Common Stock Upon Conversion. Notwithstanding anything to the contrary in this Indenture, if an event occurs that would result in an increase in the Conversion Rate by an amount in excess of limitations imposed by any shareholder approval rules or listing standards of any national or regional securities exchange that are applicable to the Company, the Company will, at its option, either obtain stockholder approval of any issuance of Common Stock upon conversion of the Notes in excess of such limitations or pay cash in lieu of delivering any shares of Common Stock otherwise deliverable upon conversions in excess of such limitations based on the Daily VWAP for each Trading Day of the relevant Observation Period in respect of which, in lieu of delivering shares of Common Stock, the Company pays cash pursuant to this Section 14.12.
Limit on Issuance of Shares of Common Stock Upon Conversion. Notwithstanding anything to the contrary in this Indenture, if an event occurs that would result in an increase in the Conversion Rate by an amount in excess of limitations imposed by The New York Stock Exchange, the Company will, at its option, either obtain stockholder approval of any issuance of Common Stock upon conversion of the Notes in excess of such limitations or pay cash in lieu of delivering any shares of Common Stock otherwise deliverable upon conversions in excess of such limitations based on the Daily VWAP for each Trading Day of the relevant Observation Period in respect of which, in lieu of delivering shares of Common Stock, the Company pays cash pursuant to this Section 13.12.
Limit on Issuance of Shares of Common Stock Upon Conversion. Notwithstanding anything to the contrary in this Indenture, if an event occurs (including pursuant to Section 13.03 and subsections Section 13.04(b), Section 13.04(c), Section 13.04(d), Section 13.04(e) and Section 13.04(h) of Section 13.04) that would result in an increase in the Conversion Rate by an amount in excess of limitations imposed by any shareholder approval rules or listing standards of any national or regional securities exchange (including the NASDAQ Global Select Market) that are applicable to the Company, the Company will, at its option, either obtain stockholder approval of any issuance of Common Stock upon conversion of the Notes in excess of such limitations or deliver cash in lieu of any shares of Common Stock otherwise deliverable upon conversions in excess of such limitations based on the Daily VWAP on each Trading Day of the relevant Observation Period in respect of which, in lieu of delivering shares of Common Stock, the Company delivers cash pursuant to this Section 13.12. Notwithstanding anything to the contrary herein, to the extent required by the NASDAQ Global Select Market, the Company will obtain stockholder approval prior to (i) taking any action described in Section 13.04(h) that would result in delivery of Common Stock upon conversion of the Notes in excess of limitations imposed by the NASDAQ Global Select Market that are applicable to the Company, (ii) engaging in a Make-Whole Fundamental Change that would result in delivery of Common Stock upon conversion of the Notes in excess of limitations imposed by the NASDAQ Global Select Market that are applicable to the Company or (iii) electing Combination Settlement.
Limit on Issuance of Shares of Common Stock Upon Conversion. Notwithstanding anything to the contrary in this Supplemental Indenture, if an event (other than a share split) occurs that results in an increase in the Conversion Rate that would potentially result in the issuance by the Company, upon conversion of the Notes, of 20% or more of the outstanding Common Stock immediately prior to the issuance of Notes, the Company shall, at its option, either obtain stockholder approval of any issuance of Common Stock upon conversion of the Notes in excess such limitation or deliver cash in lieu of any shares of Common Stock otherwise deliverable upon conversions in excess of such limitation based on the Daily VWAP of the Common Stock on each Trading Day of the relevant Observation Period in respect of which, in lieu of delivering shares of Common Stock, the Company delivers cash pursuant to this Section 8.12.
Limit on Issuance of Shares of Common Stock Upon Conversion. Notwithstanding anything to the contrary in this Indenture, if an event occurs (including pursuant to Section 13.03 and subsections Section 13.04(b), Section 13.04(c), Section 13.04(d), Section 13.04(e) and Section 13.04(h) of Section 13.04) that would result in an increase in the Conversion Rate by an amount in excess of limitations imposed by any shareholder approval rules or listing standards of any national or regional securities exchange (including the NASDAQ Global Select Market) that are applicable to the Company, the Company will, at its option, either obtain stockholder approval of any issuance of Common Stock upon conversion of the Notes in excess such limitations or deliver cash in lieu of any shares of Common Stock otherwise deliverable upon conversions in excess of such limitations based on the Daily VWAP on each Trading Day of the relevant Observation Period in respect of which, in lieu of delivering shares of Common Stock, the Company delivers cash pursuant to this Section 13.12.
Limit on Issuance of Shares of Common Stock Upon Conversion. Notwithstanding anything to the contrary in this Indenture and other than as set forth in the last sentence of this Section 14.10, if an event occurs that would result in an increase in the Conversion Rate by an amount in excess of limitations imposed by any shareholder approval rules or listing standards of any national or regional securities exchange that are applicable to the Company, the Company will obtain stockholder approval of any issuance of Common Stock upon conversion of the Notes in excess of such limitations. If such approval is not obtained following commercially reasonable efforts to solicit such approval, the Company shall pay cash in lieu of delivering any shares of Common Stock otherwise deliverable upon conversions in excess of such limitations based on the Daily VWAP for each Trading Day of the relevant Observation Period in respect of which, in lieu of delivering shares of Common Stock, the Company pays cash pursuant to this Section 14.10. Notwithstanding the foregoing, the Company shall not be obligated to obtain stockholder approval with respect to payment of cash and/or the issuance of Common Stock upon any exercise of the Optional Redemption, unless and until such Optional Redemption is exercised by the Company and the Company determines in its reasonable discretion that such stockholder approval is necessary to consummate such Optional Redemption.
Limit on Issuance of Shares of Common Stock Upon Conversion. Notwithstanding any other provision of the Notes or this Indenture, in no event will the Company issue more than 20,242,270 shares of Common Stock (which represents 19.9% of the outstanding Common Stock as of the Issue Date) upon conversion of the Notes and in payment of any Interest Make-Whole Premium obligations unless the Company has previously received stockholder approval for issuances of shares of Common Stock in excess of that number of shares in accordance with, and to the extent required by, any applicable shareholder approval rules or listing standards of any national or regional securities exchange, and any Holder who would otherwise be entitled to receive shares of Common Stock upon such conversion of the Notes in excess of such number shall instead be entitled to receive cash in an amount equal to the Daily VWAP of the Common Stock for the 10 Trading Days ending on an including the Trading Day immediately preceding the date on which such Common Stock would otherwise be issuable hereunder but for this provision, as calculated by the Company, in lieu of each share that such Holder would otherwise be entitled to receive in excess of such number. In addition, the Company shall not issue any shares of Common Stock upon conversion of the Notes and in payment of any Interest Make-Whole Premium obligations to any Holder that is an officer, director, consultant, Beneficial Owner as of the date hereof of 20% or more of the outstanding shares of Common Stock, or Affiliate of any of the foregoing, unless the Company has previously received stockholder approval for such issuances of shares of Common Stock in accordance with, and to the extent required by, any applicable shareholder approval rules or listing standards of any national or regional securities exchange, and the Company shall use its best efforts to seek and obtain such stockholder approval if so required.
Limit on Issuance of Shares of Common Stock Upon Conversion. Notwithstanding anything contained elsewhere in this Indenture, if and to the extent required by the shareholder approval rules or listing standards of any national or regional securities exchange that are applicable to the Company at the time any Notes are converted hereunder, in no event will the aggregate number of shares of Common Stock issuable upon conversion of the Notes exceed 19.99% of the Common Stock outstanding as of April 12, 2008 (as applicable, the “Conversion Rate Cap”) and if an event occurs that would otherwise result in an increase in the Conversion Rate above the Conversion Rate Cap, if and to the extent required by the shareholder approval rules or listing standards of any national or regional securities exchange that are applicable to the Company at the time any Notes are converted hereunder, the Company will either obtain stockholder approval of any issuance of Common Stock upon conversion of the Notes in excess such limitations or deliver cash in lieu of any shares of Common Stock otherwise deliverable upon conversions in excess of such limitations (such amount of cash to be based on the Last Reported Sale Price of the Company’s Common Stock on the relevant Conversion Date or, if amounts owing on conversion are determined by reference to a Cash Settlement Averaging Period, the last Trading Day of the related Cash Settlement Averaging Period).
Limit on Issuance of Shares of Common Stock Upon Conversion. Notwithstanding anything to the contrary in this Indenture, no Person will be entitled to receive any shares of Common Stock otherwise deliverable upon conversion of the Notes to the extent, but only to the extent, that such receipt would cause such Person to become, directly or indirectly, a “beneficial owner” (within the meaning of Section 13(d) of the Exchange Act) of more than the 4.9% of the shares of Common Stock outstanding at such time (such restriction, the “Beneficial Ownership Limit”). Any purported delivery of shares of Common Stock upon conversion of the Notes shall be void and have no effect to the extent, but only to the extent, that such delivery would result in any Person becoming the beneficial owner of more than 4.9% of the shares of Common Stock outstanding at such time. The Company shall pay or deliver, as the case may be, any other consideration due in respect of the Conversion Obligation as set forth in Section 14.02(c) (including cash, shares of Common Stock or combination thereof). If any delivery of shares of Common Stock otherwise owed to any Person upon conversion of the Notes is not made, in whole or in part, as a result of the Beneficial Ownership Limit, the Company’s obligation to make such delivery shall not be extinguished and it shall deliver any such shares of Common Stock otherwise deliverable as promptly as practicable after, but in no event later than two Trading Days after, any such Person gives notice to the Company that such delivery would not result in any Person exceeding the Beneficial Ownership Limit. However, until such time as the affected Person gives such notice, no Person shall be deemed to be the stockholder of record with respect to the shares of Common Stock otherwise deliverable upon conversion in excess of the Beneficial Ownership Limit. Upon delivery of such notice, Section 14.02(i) shall apply to the shares of Common Stock to be delivered pursuant to such notice. For the avoidance of doubt, the term “beneficial owner” as used in this Section 14.12 shall not include (i) with respect to any Global Note, the nominee of the Depositary or any Person having an account with the Depositary or its nominee or (ii) with respect to any Physical Note, the Holder of such Physical Note unless, in each case, such nominee, account holder or Holder shall also be a beneficial owner of such Note.
Limit on Issuance of Shares of Common Stock Upon Conversion. Notwithstanding the above, certain listing standards of The NASDAQ Global Select Market may limit the amount by which the Conversion Rate may be increased pursuant to the events described in Sections 13.04(b) through (e) and as described in Section 13.03. These standards generally require stockholder approval before entering into certain transactions that potentially result in the issuance of 20% or more of the Common Stock outstanding on the date of this Indenture at an effective Conversion Price less than the greater of book or market value (determined in accordance with the applicable guidelines of The NASDAQ Global Select Market) at the time the Notes are initially issued unless the Company obtains stockholder approval of issuances of Common Stock upon conversion of the Notes in excess of such limitations. In accordance with these listing standards, these restrictions will apply at any time when the Notes are outstanding, regardless of whether the Company then has a class of securities listed on The NASDAQ Global Select Market. Accordingly, the Company covenants not to enter into any transaction, or take any other voluntary action, that would require an increase of the Conversion Rate resulting in the Notes becoming convertible into a number of shares of Common Stock in excess of any limitations imposed by the continued listing standards of The NASDAQ Global Select Market, without complying, if applicable, with the stockholder approval rules contained in such listing standards.
