Common use of Make-Whole Fundamental Change Clause in Contracts

Make-Whole Fundamental Change. (i) If a Make-Whole Fundamental Change occurs, the Effective Date of which is on or prior to April 1, 2063, and a Holder elects to convert Debentures in connection with such Make-Whole Fundamental Change, the Company shall increase the applicable Conversion Rate for the Debentures surrendered for conversion by a number of additional shares of the Company’s Common Stock (the “Additional Shares”) determined as set forth in clause (v) below. A conversion of Debentures shall be deemed to be “in connection with” a Make-Whole Fundamental Change if the notice of conversion of the Debentures is received by the conversion agent from and including the Effective Date of the Make-Whole Fundamental Change transaction up to and including the date that is 35 days after such date, unless such transaction is also a Fundamental Change, the Holder specifies in the notice of conversion that such conversion is being made pursuant to the exercise of the Fundamental Change Option and the conversion takes place during the Fundamental Change Option Period. (ii) The number of Additional Shares will be determined by reference to the table in clause (v) below and is based on the date on which the Make-Whole Fundamental Change becomes effective (the “Effective Date”) and the price paid per share of the Company’s Common Stock in the Make-Whole Fundamental Change transaction (the “Stock Price”). If the Make-Whole Fundamental Change is an Asset Sale Make-Whole Fundamental Change and the consideration paid for such property and assets consists solely of cash, the Stock Price shall be the cash amount paid for such property and assets, expressed as an amount per share of the Company’s Common Stock outstanding on the Effective Date. If the Make-Whole Fundamental Change is a Common Stock Change Make-Whole Fundamental Change and holders of the Company’s Common Stock receive only cash in the Make-Whole Fundamental Change transaction, the Stock Price will equal the cash amount paid per share. In all other cases, the Stock Price will equal the average of the Closing Sale Prices of the Common Stock over the five-Trading Day period ending on the Trading Day immediately preceding the Effective Date. (iii) The Stock Prices set forth in the first row of the table below shall be adjusted as of any date on which the Conversion Rate of the Debentures is adjusted pursuant to Section 10.05 (but not for any increase to the Conversion Rate for a Make-Whole Fundamental Change pursuant to this Section 10.10). The adjusted Stock Prices shall equal the prices per share applicable immediately prior to such adjustment, multiplied by a fraction, (i) the numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the Stock Price adjustment and (ii) the denominator of which is the Conversion Rate as so adjusted. (iv) The number of Additional Shares will be adjusted in the same manner and for the same events as the Conversion Rate of the Debentures is adjusted pursuant to Section 10.05(v). (v) The following table sets forth the Stock Price and number of Additional Shares issuable per $1,000 principal amount of Debentures: Effective Date $ 11.25 $ 12.00 $ 13.50 $ 15.00 $ 20.00 $ 25.00 $ 30.00 $ 40.00 $ 50.00 $ 60.00 $ 80.00 $ 100.00 March 25, 2008 14.81 13.78 11.98 10.62 7.59 5.80 4.61 3.16 2.30 1.74 1.06 0.68 April 1, 2009 14.81 12.70 10.95 9.70 6.90 5.29 4.22 2.91 2.14 1.62 1.00 0.64 April 1, 2010 14.81 11.91 10.35 9.01 6.40 4.90 3.94 2.73 2.01 1.54 0.96 0.62 April 1, 2011 14.81 10.32 8.80 7.38 5.07 3.85 3.10 2.17 1.63 1.26 0.81 0.54 April 1, 2012 14.81 9.05 7.31 5.45 3.24 2.28 1.86 1.32 1.00 0.79 0.52 0.36 April 1, 2013 14.81 7.60 5.26 2.88 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 1, 2018 14.81 6.24 3.93 2.36 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 1, 2023 14.81 6.30 3.88 2.40 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 1, 2028 14.81 6.13 3.73 2.27 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 1, 2033 14.81 5.97 3.58 2.13 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 1, 2038 14.81 5.80 3.43 2.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 1, 2043 14.81 5.63 3.28 1.87 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 1, 2048 14.81 5.47 3.13 1.73 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 1, 2053 14.81 5.30 2.99 1.60 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 1, 2058 14.81 5.13 2.84 1.47 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 1, 2063 14.81 4.97 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 (vi) If the exact Stock Price and Effective Date are not set forth on the table above, then: (A) If the Stock Price is between two Stock Prices in the table or the Effective Date is between two Effective Dates in the table, the number of Additional Shares will be determined by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Prices and the two dates, as applicable, based on a 365-day year. (B) If the Stock Price is more than $100.00, subject to adjustment, the number of Additional Shares will be zero. (C) If the Stock Price is less than $11.25, subject to adjustment, the number of Additional Shares will be zero. (vii) Notwithstanding the foregoing, in no event will the total number of shares of Common Stock issuable upon conversion of a Debenture (after giving effect to any Additional Shares issuable pursuant to this Section 10.10) exceed 14.81 per $1,000 principal amount of Debentures, subject to adjustment in the same manner and for the same events as the Conversion Rate may be adjusted pursuant to Section 10.05. (viii) Within thirty (30) days before any anticipated Effective Date (such date of notice, the “Make-Whole Fundamental Change Notice Date”) of a Make-Whole Fundamental Change, the Company shall mail, or cause to be mailed, to all Holders of record of the Debentures at their addresses shown in the Registrar, notice of, and the Company will publicly announce, through a reputable national newswire service, and publish on the Company’s website, the anticipated Effective Date of such proposed Make-Whole Fundamental Change. In addition, no later than the third Business Day after the Effective Date of the Make-Whole Fundamental Change, the Company shall mail, or cause to be mailed, to all Holders of record of the Debentures at their addresses shown in the Registrar, notice of, and the Company will publicly announce, through a reputable national newswire service, and publish on the Company’s website, the effectiveness of the Make-Whole Fundamental Change.

Make-Whole Fundamental Change. Subject to Section 11.20, if the Effective Date of a Fundamental Change under clause (ia), (b) If or (c) of the definition of Fundamental Change (as defined herein and determined after giving effect to any exceptions to or exclusions from such definition, but without regard to the proviso in clause (c) of the definition thereof) occurs with respect to any Significant Reference Company prior to December 1, 2024 (a “Make-Whole Fundamental Change occurs, the Effective Date of which is on or prior to April 1, 2063Change”), and a Holder elects to convert exchange its Debentures in connection with such Make-Whole Fundamental Change, then the Company shall increase pay a premium by increasing the applicable Conversion Rate number of Reference Shares of the Significant Reference Company to which the Make-Whole Fundamental Change relates attributable to each Debenture for the Debentures surrendered for conversion by a number of additional shares of the Company’s Common Stock (the “Additional Shares”) determined exchange as set forth described in clause (v) belowthis Section 11.13. A conversion An exchange of Debentures shall will be deemed for these purposes to be “in connection with” a Make-Whole Fundamental Change if the notice of conversion Exchange Date of the Debentures is received by occurs during the conversion agent from and including period commencing on the Effective Date of the Make-Whole Fundamental Change transaction up and ending at the close of business on the Business Day immediately prior to and including the date related Fundamental Change Repurchase Date (or, in the case of a Make-Whole Fundamental Change that is 35 days after would have been a Fundamental Change but for the proviso in clause (c) of the definition thereof, the 35th Scheduled Trading Day immediately following the Effective Date of such date, unless such transaction is also Make-Whole Fundamental Change). Upon an exchange of Debentures in connection with a Make-Whole Fundamental Change, the Holder specifies in Company shall deliver the notice consideration due upon such exchange based on (i) the number of conversion that Reference Shares attributable to such conversion is being made pursuant Debenture before giving effect to the exercise provisions of the Fundamental Change Option and the conversion takes place during the Fundamental Change Option Period. this Section 11.13, plus (ii) The an additional number of Reference Shares of the Significant Reference Company to which the Make-Whole Fundamental Change relates in an amount equal to the Reference Share Adjustment as set forth in Section 11.14. In connection with an exchange of Debentures in connection with a Make-Whole Fundamental Change, to the extent the definition of “Reference Shares” relates to reclassifications, share exchanges, mergers and consolidations pursuant to which holders of Reference Shares receive cash or assets other than non-publicly traded securities would otherwise be applicable, such provisions shall not be applicable to the Significant Reference Company that is the subject of the Make-Whole Fundamental Change and each Reference Share of such Significant Reference Company attributable to a Debenture shall be deemed to be the type and amount of consideration to be received by a holder of one Reference Share of the applicable Significant Reference Company in such transaction. The Company shall notify all Holders and beneficial owners of Debentures of the Effective Date of any Fundamental Change or Make-Whole Fundamental Change relating to a Significant Reference Company no later than 10 Business Days prior to its Effective Date or, if later, within two Business Days after the date such Fundamental Change or Make-Whole Fundamental Change is publicly announced by such Significant Reference Company. In connection with any exchange of Debentures in connection with a Make-Whole Fundamental Change, no change will be made to any Reference Shares attributable to a Debenture of any Reference Company other than the Significant Reference Company which is the subject of the Make-Whole Fundamental Change. If a Holder elects to exchange its Debentures in connection with a Make-Whole Event and the Exchange Date occurs on or after the record date (or, if there is no record date, the payment date) of any Extraordinary Additional Distribution made in respect of the related Fundamental Change or Make-Whole Fundamental Change, the Company shall not be required to make any Extraordinary Additional Distribution with respect to Debentures so exchanged by such Holder or, if such Extraordinary Additional Distribution shall have been made or such Holder was not the holder of record on the record date or payment date, the Holder shall tender funds to the Company on or before the settlement date for such exchange in an amount equal to the amount of such Extraordinary Additional Distribution as noticed by the Company. The amount, if any, by which the number of Reference Shares attributable to a Debenture will be increased to reflect the premium in connection with a Make-Whole Fundamental Change will be determined by reference to the table in clause (v) below and is Section 11.14, based on the Effective Date and the Stock Price for such Make-Whole Fundamental Change. For purposes of this Section 11.13, the “Effective Date” will be the date on which the Make-Whole Fundamental Change occurs or becomes effective (and the “Effective Date”Stock Price” will be (x) and in the case of a Make-Whole Fundamental Change described in clause (c) of the definition of Fundamental Change, the price paid (or deemed paid) per share Reference Share of the Company’s Common Stock applicable Significant Reference Company in the Make-Whole Fundamental Change; and (y) in the case of a Make-Whole Fundamental Change transaction described in clause (a) or (b) of the “Stock Price”). If definition of Fundamental Change, the Current Market Price (determined in the manner set forth in Section 11.04) for one Reference Share of the applicable Significant Reference Company over the 10 Scheduled Trading Day valuation period ending on, and including, the Trading Day immediately preceding the date on which the Make-Whole Fundamental Change occurs or becomes effective. In cases where the Stock Price is an Asset Sale determined by reference to the consideration paid (or deemed paid) per Reference Share in a Make-Whole Fundamental Change and the such consideration paid for such property and assets consists solely of is other than cash, the Stock Price shall be the cash amount paid for such property and assets, expressed as an amount per share of the Company’s Common Stock outstanding on the Effective Date. If the Make-Whole Fundamental Change is a Common Stock Change Make-Whole Fundamental Change and holders of the Company’s Common Stock receive only cash Current Market Price (determined in the Make-Whole Fundamental Change transaction, the Stock Price will equal the cash amount paid per share. In all other cases, the Stock Price will equal the average manner set forth in Section 11.04) of the Closing Sale Prices of the Common Stock such Reference Shares over the five-10 Scheduled Trading Day valuation period ending on on, and including, the Trading Day immediately preceding the Effective Date. (iii) The Stock Prices set forth in the first row of the table below shall be adjusted as of any date on which the Conversion Rate of the Debentures is adjusted pursuant to Section 10.05 (but not for any increase to the Conversion Rate for a Make-Whole Fundamental Change pursuant to this Section 10.10). The adjusted Stock Prices shall equal the prices per share applicable immediately prior to such adjustment, multiplied by a fraction, (i) the numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the Stock Price adjustment and (ii) the denominator of which is the Conversion Rate as so adjusted. (iv) The number of Additional Shares will be adjusted in the same manner and for the same events as the Conversion Rate of the Debentures is adjusted pursuant to Section 10.05(v). (v) The following table sets forth the Stock Price and number of Additional Shares issuable per $1,000 principal amount of Debentures: Effective Date $ 11.25 $ 12.00 $ 13.50 $ 15.00 $ 20.00 $ 25.00 $ 30.00 $ 40.00 $ 50.00 $ 60.00 $ 80.00 $ 100.00 March 25, 2008 14.81 13.78 11.98 10.62 7.59 5.80 4.61 3.16 2.30 1.74 1.06 0.68 April 1, 2009 14.81 12.70 10.95 9.70 6.90 5.29 4.22 2.91 2.14 1.62 1.00 0.64 April 1, 2010 14.81 11.91 10.35 9.01 6.40 4.90 3.94 2.73 2.01 1.54 0.96 0.62 April 1, 2011 14.81 10.32 8.80 7.38 5.07 3.85 3.10 2.17 1.63 1.26 0.81 0.54 April 1, 2012 14.81 9.05 7.31 5.45 3.24 2.28 1.86 1.32 1.00 0.79 0.52 0.36 April 1, 2013 14.81 7.60 5.26 2.88 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 1, 2018 14.81 6.24 3.93 2.36 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 1, 2023 14.81 6.30 3.88 2.40 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 1, 2028 14.81 6.13 3.73 2.27 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 1, 2033 14.81 5.97 3.58 2.13 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 1, 2038 14.81 5.80 3.43 2.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 1, 2043 14.81 5.63 3.28 1.87 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 1, 2048 14.81 5.47 3.13 1.73 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 1, 2053 14.81 5.30 2.99 1.60 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 1, 2058 14.81 5.13 2.84 1.47 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 1, 2063 14.81 4.97 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 (vi) If the exact Stock Price and Effective Date are not set forth on the table above, then: (A) If the Stock Price is between two Stock Prices in the table or the Effective Date is between two Effective Dates in the table, the number of Additional Shares will be determined by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Prices and the two dates, as applicable, based on a 365-day year. (B) If the Stock Price is more than $100.00, subject to adjustment, the number of Additional Shares will be zero. (C) If the Stock Price is less than $11.25, subject to adjustment, the number of Additional Shares will be zero. (vii) Notwithstanding the foregoing, in no event will the total number of shares of Common Stock issuable upon conversion of a Debenture (after giving effect to any Additional Shares issuable pursuant to this Section 10.10) exceed 14.81 per $1,000 principal amount of Debentures, subject to adjustment in the same manner and for the same events as the Conversion Rate may be adjusted pursuant to Section 10.05. (viii) Within thirty (30) days before any anticipated Effective Date (such date of notice, the “Make-Whole Fundamental Change Notice Date”) of a Make-Whole Fundamental Change, the Company shall mail, or cause to be mailed, to all Holders of record of the Debentures at their addresses shown in the Registrar, notice of, and the Company will publicly announce, through a reputable national newswire service, and publish on the Company’s website, the anticipated Effective Date of such proposed Make-Whole Fundamental Change. In additionNotwithstanding the foregoing, no later than if the third Business Day after Reference Shares attributable to the Effective Date Debentures are composed of the Make-Whole Fundamental ChangeReference Shares of more than one Reference Company, then the Company shall mail, or cause to Stock Price will be mailed, to all Holders of record the sum of the Debentures at their addresses shown Stock Prices of each Reference Company calculated in accordance with the Registrar, notice of, and the Company will publicly announce, through a reputable national newswire service, and publish on the Company’s website, the effectiveness of the Make-Whole Fundamental Changeforegoing.

Make-Whole Fundamental Change. (i) If The occurrence of a Make-Whole Fundamental Change occurs(as defined in the Convertible Notes) shall constitute an Extraordinary Event for purposes of this Section 9. Consequences of Merger Events, the Effective Date of which is on or prior to April 1, 2063, Tender Offers and a Holder elects to convert Debentures in connection with such Make-Whole Fundamental Change, the Company shall increase the applicable Conversion Rate for the Debentures surrendered for conversion by a number of additional shares Changes: Notwithstanding Section 12.2 or Section 12.3 of the Company’s Common Stock (Definitions, upon the “Additional Shares”) determined as set forth in clause (v) below. A conversion of Debentures shall be deemed to be “in connection with” a Make-Whole Fundamental Change if the notice of conversion of the Debentures is received by the conversion agent from and including the Effective Date of the Make-Whole Fundamental Change transaction up to and including the date that is 35 days after such date, unless such transaction is also a Fundamental Change, the Holder specifies in the notice of conversion that such conversion is being made pursuant to the exercise of the Fundamental Change Option and the conversion takes place during the Fundamental Change Option Period. (ii) The number of Additional Shares will be determined by reference to the table in clause (v) below and is based on the date on which the Make-Whole Fundamental Change becomes effective (the “Effective Date”) and the price paid per share of the Company’s Common Stock in the Make-Whole Fundamental Change transaction (the “Stock Price”). If the Make-Whole Fundamental Change is an Asset Sale Make-Whole Fundamental Change and the consideration paid for such property and assets consists solely of cash, the Stock Price shall be the cash amount paid for such property and assets, expressed as an amount per share of the Company’s Common Stock outstanding on the Effective Date. If the Make-Whole Fundamental Change is a Common Stock Change Make-Whole Fundamental Change and holders of the Company’s Common Stock receive only cash in the Make-Whole Fundamental Change transaction, the Stock Price will equal the cash amount paid per share. In all other cases, the Stock Price will equal the average of the Closing Sale Prices of the Common Stock over the five-Trading Day period ending on the Trading Day immediately preceding the Effective Date. (iii) The Stock Prices set forth in the first row of the table below shall be adjusted as of any date on which the Conversion Rate of the Debentures is adjusted pursuant to Section 10.05 (but not for any increase to the Conversion Rate for a Make-Whole Fundamental Change pursuant to this Section 10.10). The adjusted Stock Prices shall equal the prices per share applicable immediately prior to such adjustment, multiplied by a fraction, (i) the numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the Stock Price adjustment and (ii) the denominator of which is the Conversion Rate as so adjusted. (iv) The number of Additional Shares will be adjusted in the same manner and for the same events as the Conversion Rate of the Debentures is adjusted pursuant to Section 10.05(v). (v) The following table sets forth the Stock Price and number of Additional Shares issuable per $1,000 principal amount of Debentures: Effective Date $ 11.25 $ 12.00 $ 13.50 $ 15.00 $ 20.00 $ 25.00 $ 30.00 $ 40.00 $ 50.00 $ 60.00 $ 80.00 $ 100.00 March 25, 2008 14.81 13.78 11.98 10.62 7.59 5.80 4.61 3.16 2.30 1.74 1.06 0.68 April 1, 2009 14.81 12.70 10.95 9.70 6.90 5.29 4.22 2.91 2.14 1.62 1.00 0.64 April 1, 2010 14.81 11.91 10.35 9.01 6.40 4.90 3.94 2.73 2.01 1.54 0.96 0.62 April 1, 2011 14.81 10.32 8.80 7.38 5.07 3.85 3.10 2.17 1.63 1.26 0.81 0.54 April 1, 2012 14.81 9.05 7.31 5.45 3.24 2.28 1.86 1.32 1.00 0.79 0.52 0.36 April 1, 2013 14.81 7.60 5.26 2.88 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 1, 2018 14.81 6.24 3.93 2.36 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 1, 2023 14.81 6.30 3.88 2.40 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 1, 2028 14.81 6.13 3.73 2.27 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 1, 2033 14.81 5.97 3.58 2.13 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 1, 2038 14.81 5.80 3.43 2.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 1, 2043 14.81 5.63 3.28 1.87 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 1, 2048 14.81 5.47 3.13 1.73 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 1, 2053 14.81 5.30 2.99 1.60 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 1, 2058 14.81 5.13 2.84 1.47 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 1, 2063 14.81 4.97 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 (vi) If the exact Stock Price and Effective Date are not set forth on the table above, then: (A) If the Stock Price is between two Stock Prices in the table or the Effective Date is between two Effective Dates in the table, the number of Additional Shares will be determined by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Prices and the two dates, as applicable, based on a 365-day year. (B) If the Stock Price is more than $100.00, subject to adjustment, the number of Additional Shares will be zero. (C) If the Stock Price is less than $11.25, subject to adjustment, the number of Additional Shares will be zero. (vii) Notwithstanding the foregoing, in no event will the total number of shares of Common Stock issuable upon conversion occurrence of a Debenture (after giving effect to any Additional Shares issuable pursuant to this Section 10.10) exceed 14.81 per $1,000 principal amount of DebenturesMerger Event, subject to adjustment in the same manner and for the same events as the Conversion Rate may be adjusted pursuant to Section 10.05. (viii) Within thirty (30) days before any anticipated Effective Date (such date of notice, the “Make-Whole Fundamental Change Notice Date”) of a Tender Offer or a Make-Whole Fundamental Change, the Company Calculation Agent shall mail, make a corresponding adjustment in respect of any adjustment under the Convertible Notes to any one or cause to be mailed, to all Holders of record more of the Debentures at their addresses shown in nature of the RegistrarShares, notice ofthe Lower Strike Price, the Upper Strike Price, the Lower Cap Price, the Upper Cap Price and the Company will publicly announce, through a reputable national newswire service, and publish on Unit Entitlement (including any adjustment to the Company’s website, Conversion Rate for the anticipated Effective Date issuance of such proposed Make-Whole Fundamental Change. In addition, no later than the third Business Day after the Effective Date additional shares as set forth in Section 4 of the Convertible Notes); provided that (i) upon the occurrence of a Merger Event, Tender Offer or Make-Whole Fundamental Change, the Company shall mailCalculation Agent may make any adjustment consistent with the Modified Calculation Agent Adjustment set forth in Section 12.2(e) or Section 12.3(d), or cause to be mailedas applicable, to all Holders of record of the Debentures at their addresses shown Definitions to the Lower Cap Price, the Upper Cap Price or any other variable relevant to the exercise, settlement or payment for the Transaction to preserve the Average Fair Value (as defined below) of such Transaction to Counterparty and GM that would have existed had such event not occurred, (ii) with respect to a Tender Offer, adjustments to the Conversion Rate shall not be subject to Section 3(k)(i) of the Convertible Notes and any adjustment to the Conversion Rate under the Convertible Notes that would have applied but for such section shall adjust the Conversion Rate for purposes hereof, (iii) any adjustment to the Lower Cap Price shall, in no event, result in the Registrar, notice ofLower Cap Price being less than the Lower Strike Price, and (iv) any adjustment to the Company will publicly announceUpper Cap Price shall, through a reputable national newswire servicein no event, and publish on result in the Company’s website, Upper Cap Price being less than the effectiveness of the Make-Whole Fundamental ChangeUpper Strike Price.

Make-Whole Fundamental Change. (ia) If a Make-Whole Fundamental Change occurs, the Effective Date of which is on or prior to April 1March 15, 20632047, and a Holder elects to convert Debentures in connection with such Make-Whole Fundamental Change, the Company shall increase the applicable Conversion Rate for the Debentures surrendered for conversion by a number of additional shares of the Company’s Common Stock (the “Additional Shares”) determined as set forth in clause (ve) below. A conversion of Debentures shall be deemed to be “in connection with” a Make-Whole Fundamental Change if the notice of conversion of the Debentures is received by the conversion agent from and including the Effective Date of the Make-Whole Fundamental Change transaction up to and including the date that is 35 days after such date, unless such transaction is also a Fundamental Change, the Holder specifies in the notice of conversion that such conversion is being made pursuant to the exercise of the Fundamental Change Option and the conversion takes place during the Fundamental Change Option Period. (iib) The number of Additional Shares will be determined by reference to the table in clause (ve) below and is based on the date on which the Make-Whole Fundamental Change becomes effective (the “Effective Date”) and the price paid per share of the Company’s Common Stock in the Make-Whole Fundamental Change transaction (the “Stock Price”). If the Make-Whole Fundamental Change is an Asset Sale Make-Whole Fundamental Change and the consideration paid for such property and assets consists solely of cash, the Stock Price shall be the cash amount paid for such property and assets, expressed as an amount per share of the Company’s Common Stock outstanding on the Effective Date. If the Make-Whole Fundamental Change is a Common Stock Change Make-Whole Fundamental Change and holders of the Company’s Common Stock receive only cash in the Make-Whole Fundamental Change transaction, the Stock Price will equal the cash amount paid per share. In all other cases, the Stock Price will equal the average of the Closing Sale Prices of the Common Stock over the five-Trading Day period ending on the Trading Day immediately preceding the Effective Date. (iiic) The Stock Prices set forth in the first row of the table below shall be adjusted as of any date on which the Conversion Rate of the Debentures is adjusted pursuant to Section 10.05 2.17 (but not for any increase to the Conversion Rate for a Make-Whole Fundamental Change pursuant to this Section 10.102.22). The adjusted Stock Prices shall equal the prices per share applicable immediately prior to such adjustment, multiplied by a fraction, (i) the numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the Stock Price adjustment and (ii) the denominator of which is the Conversion Rate as so adjusted. (ivd) The number of Additional Shares will be adjusted in the same manner and for the same events as the Conversion Rate of the Debentures is adjusted pursuant to Section 10.05(v)2.17. (ve) The following table sets forth the Stock Price and number of Additional Shares issuable per $1,000 principal amount of Debentures: Effective Date $ 11.25 $ 12.00 $ 13.50 $ 15.00 $ 20.00 $ 25.00 $ 30.00 $ 40.00 $ 50.00 $ 60.00 $ 80.00 $ 100.00 March 259, 2007 5.796 4.283 3.561 3.189 2.476 1.987 1.830 1.639 1.381 0.730 0.471 0.332 0.245 March 15, 2008 14.81 13.78 11.98 10.62 7.59 5.80 4.61 3.16 2.30 1.74 1.06 0.68 April 15.796 4.080 3.347 2.972 2.259 1.779 1.627 1.443 1.200 0.615 0.395 0.280 0.208 March 15, 2009 14.81 12.70 10.95 9.70 6.90 5.29 4.22 2.91 2.14 1.62 1.00 0.64 April 15.796 3.832 3.085 2.705 1.991 1.522 1.376 1.203 0.980 0.479 0.308 0.220 0.164 March 15, 2010 14.81 11.91 10.35 9.01 6.40 4.90 3.94 2.73 2.01 1.54 0.96 0.62 April 15.796 3.580 2.803 2.410 1.681 1.218 1.080 0.919 0.720 0.328 0.212 0.153 0.116 March 15, 2011 14.81 10.32 8.80 7.38 5.07 3.85 3.10 2.17 1.63 1.26 0.81 0.54 April 15.796 3.368 2.530 2.102 1.318 0.844 0.711 0.566 0.403 0.165 0.111 0.081 0.062 March 15, 2012 14.81 9.05 7.31 5.45 3.24 2.28 1.86 1.32 1.00 0.79 0.52 0.36 April 15.796 3.296 2.392 1.904 0.916 0.221 0.032 0.008 0.005 0.003 0.002 0.002 0.002 March 15, 2013 14.81 7.60 5.26 2.88 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 15.796 3.292 2.390 1.903 0.916 0.219 0.000 0.000 0.000 0.000 0.000 0.000 0.000 March 15, 2018 14.81 6.24 3.93 2.36 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 12014 5.796 3.290 2.390 1.903 0.917 0.219 0.000 0.000 0.000 0.000 0.000 0.000 0.000 March 15, 2023 14.81 6.30 3.88 2.40 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 12015 5.796 3.289 2.391 1.906 0.919 0.220 0.000 0.000 0.000 0.000 0.000 0.000 0.000 March 15, 2028 14.81 6.13 3.73 2.27 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 12016 5.796 3.289 2.393 1.909 0.922 0.221 0.000 0.000 0.000 0.000 0.000 0.000 0.000 March 15, 2033 14.81 5.97 3.58 2.13 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 12017 5.796 3.286 2.390 1.906 0.920 0.221 0.000 0.000 0.000 0.000 0.000 0.000 0.000 March 15, 2038 14.81 5.80 3.43 2.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 12022 5.796 3.379 2.456 1.959 0.949 0.226 0.000 0.000 0.000 0.000 0.000 0.000 0.000 March 15, 2043 14.81 5.63 3.28 1.87 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 12027 5.796 3.511 2.547 2.030 0.983 0.235 0.000 0.000 0.000 0.000 0.000 0.000 0.000 March 15, 2048 14.81 5.47 3.13 1.73 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 12032 5.796 3.676 2.659 2.115 1.022 0.244 0.000 0.000 0.000 0.000 0.000 0.000 0.000 March 15, 2053 14.81 5.30 2.99 1.60 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 12037 5.796 3.862 2.778 2.204 1.060 0.254 0.000 0.000 0.000 0.000 0.000 0.000 0.000 March 15, 2058 14.81 5.13 2.84 1.47 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 12042 5.796 3.982 2.826 2.227 1.059 0.253 0.000 0.000 0.000 0.000 0.000 0.000 0.000 March 15, 2063 14.81 4.97 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.002047 5.796 2.166 0.000 0.000 0.000 0.000 0.000 0.000 0.000 0.000 0.000 0.000 0.000 (vif) If the exact Stock Price and Effective Date are not set forth on the table above, then: (Ai) If the Stock Price is between two Stock Prices in the table or the Effective Date is between two Effective Dates in the table, the number of Additional Shares will be determined by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Prices and the two dates, as applicable, based on a 365-day year. (Bii) If the Stock Price is more than $100.00300.00, subject to adjustment, the number of Additional Shares will be zero. (Ciii) If the Stock Price is less than $11.2542.32, subject to adjustment, the number of Additional Shares will be zero. (viig) Notwithstanding the foregoing, in no event will the total number of shares of Common Stock issuable upon conversion of a Debenture (after giving effect to any Additional Shares issuable pursuant to this Section 10.102.22) exceed 14.81 23.6295 per $1,000 principal amount of Debentures, subject to adjustment in the same manner and for the same events as the Conversion Rate may be adjusted pursuant to Section 10.052.17. (viiih) Within thirty (30) days before any anticipated Effective Date (such date of notice, the “Make-Whole Fundamental Change Notice Date”) of a Make-Whole Fundamental Change, the Company shall mail, or cause to be mailed, to all Holders of record of the Debentures at their addresses shown in the Security Registrar, notice of, and the Company will publicly announce, through a reputable national newswire service, and publish on the Company’s website, the anticipated Effective Date of such proposed Make-Whole Fundamental Change. In addition, no later than the third Business Day after the Effective Date of the Make-Whole Fundamental Change, the Company shall mail, or cause to be mailed, to all Holders of record of the Debentures at their addresses shown in the Security Registrar, notice of, and the Company will publicly announce, through a reputable national newswire service, and publish on the Company’s website, the effectiveness of the Make-Whole Fundamental Change.